Gael Souroop v State of Victoria (Department of Justice and Regulation)
[2018] FWC 1759
•26 MARCH 2018
| [2018] FWC 1759 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Gael Souroop
v
State of Victoria (Department of Justice and Regulation)
(C2018/981)
COMMISSIONER PLATT | ADELAIDE, 26 MARCH 2018 |
Application to deal with contraventions involving dismissal – extension of time – application granted.
Summary
[1] Mr Gael Souroop has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by State of Victoria (Department of Justice and Regulation) (DJR) on 29 December 2017 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 23 February 2018.
[3] Mr Souroop’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“I submitted the wrong form (F3) (sic) but it was submitted within the 21 day time frame.”
[4] DJR filed a form F8A Employer Response on 9 March 2018 which indicated that Mr Souroop was provided with 4 weeks’ notice on 28 November 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.
[5] On 5 March 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 20 March 2018. 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 Souroop and DJR were directed to provide an outline of argument by 12 March 2018.
Submissions
[6] Mr Souroop provided a written submission which is summarised as follows:
• He was notified of the dismissal in late November 2017 and it took effect on 29 December 2017.
• He originally lodged an unfair dismissal application (U2018/367) within the 21 day time period. He was informed of the difference between an unfair dismissal application and a general protections application by the unfair dismissal conciliator.
• On 13 February 2018, he filed a form F50 Notice of Discontinuance for matter U2018/367.
• On 13 February 2018, in a separate email, he sent a form F8 general protections application to the unfair dismissal conciliator.
• On 14 February 2018, the unfair dismissal conciliator replied to him advising that the form F8 general protections application could not be sent to her email address and advising that Mr Souroop needed to contact the Registry.
• Mr Souroop then posted the application to the Fair Work Commission.
[7] DJR provided a written submission which is summarised as follows:
• Mr Souroop was notified of the dismissal on 28 November 2017 and it took effect on 29 December 2017. He was dismissed due to his incapacity to perform the inherent requirements of his position as Prison Officer.
• Mr Souroop had filed an unfair dismissal application which he subsequently discontinued.
• On 22 February 2018, Ms Pavone wrote to the unfair dismissal conciliator and advised that they had not received advice that Mr Souroop had filed a form F50 Notice of Discontinuance.
• On 23 February 2018, the unfair dismissal conciliator forwarded a copy of the form F50 Notice of Discontinuance date stamped 23 February 2018.
[8] DJR also provided the following documents:
• A letter dated 2 May 2017 from DJR to Mr Souroop titled ‘Your Return to Work’
• A letter dated 5 May 2017 from DJR to Dr Ramsurrun titled ‘Gael Souroop’
• An email chain from 5 June 2017 to 21 July 2017 between Mr Souroop, Ms Pavone and Dr Ramsurrun
• A letter dated 21 July 2017 from DJR to Mr Souroop titled ‘Your Employment’
• The termination letter signed by DJR 27 November 2017
[9] A hearing was conducted by way of telephone conference on 20 March 2018. A sound file record of the telephone conference was kept. Mr Souroop represented himself and Mr Kelvin Reidy represented DJR.
[10] At the hearing Mr Souroop’s advised that having had a conversation with the unfair dismissal conciliator, he determined that his unfair dismissal claim would be discontinued and a general protections claim filed. Mr Souroop emailed the form F50 Notice of Discontinuance and the form F8 general protections application to the conciliator in separate emails on 13 February 2018. On 14 February 2018, the conciliator advised by email that she could not accept the lodgement of the application.
[11] Mr Souroop submitted the following new documents at the hearing:
• An email sent from an unfair dismissal conciliator to Mr Souroop at 10.37am on 13 February 2018 summarising the conciliation discussions including a reminder that only one claim can be on foot and enclosing a form F50 Notice of Discontinuance.
• Email sent at 10.46am on 13 February 2018 to DJR summarising the communication sent to Mr Souroop.
• Email sent at 6.35pm on 13 February 2018 to the unfair dismissal conciliator which referred to the attached form F50 Notice of Discontinuance and advised that he wanted to pursue a general protections claim and would file a form F8.
• Email sent at 8.36pm on 13 February 2018 from Mr Souroop to the unfair dismissal conciliator which referred to the attached form F8 application.
• Email sent at 5.51pm on 14 February 2018 by the unfair dismissal conciliator advising that she could not process the F8 general protections application and advising Mr Souroop to contact the Registry.
[12] DJR provided the following new documents at the hearing:
• Email sent at 23 February 2018 from the unfair dismissal conciliator to the Respondent enclosing the form F50 Notice of Discontinuance that had been filed by Mr Souroop but not forwarded on by Commission.
[13] The Commission’s records contain a copy of the envelope containing the application that was posted and appears to have been scanned and imprinted by the postal system at 12.31pm on 20 February 2018, and has been date stamped on arrival at the Commission at 8.00am on 23 February 2018.
[14] DJR reiterated its submissions and provided two authorities with respect to the meaning of the term exceptional circumstances (Adey v Christian Heritage College & Ors;1 Officeworks Ltd v Parker).2 DJR contend that the circumstances in this matter are not exceptional and that the merits weigh against Mr Souroop as he cannot perform the inherent requirements of the role.
[15] At the telephone conference, DJR requested that, due to the new facts, it be provided with additional time to provide submissions. I granted DJR an additional 2 days (22 March 2018) to consider and make any submissions on the new material provided at the hearing, and a further day for Mr Souroop to respond to any additional DJR submissions or material.
[16] I have disregarded any material submitted in so far as it goes beyond the basis for which the adjournment was granted.
[17] DJR’s supplementary submission contended that:
• The first part of the delay (to 14 February 2018) was occasioned by Mr Souroop lodging an unfair dismissal application when he wanted to file a general protections applications and this is not an exceptional circumstance (Da Silveira v A4E Pty Limited). 3
- The second part of the delay related to the period between 14 and 20 February 2018 (sic) when Mr Souroop was advised that the unfair dismissal conciliator could not accept receipt of his emailed application, this delay has not been explained and thus exceptional circumstances do not exist.
Applicable Law
[18] Section 366 of the Act relevantly states:
“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.”
[19] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd4 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.”
Consideration
[20] This general protections application by Mr Souroop was made 35 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[21] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay and any action taken by the person to dispute the dismissal
[22] It is not disputed that on 11 January 2018, Mr Souroop filed an unfair dismissal application (U2018/367). On 13 February 2018, the Commission records indicate that a conciliation was conducted. It appears from the correspondence submitted that at the conclusion of the conference Mr Souroop was actively considering taking a general protections claim instead of an unfair dismissal claim. It appears that Mr Souroop was unaware of the different options prior to the conciliation conference. I accept that Mr Souroop (particularly not having the benefit of any legal advice at that stage) would not have been aware of the differences in a general protections application versus an unfair dismissal application. Based on the facts contained in the application, Mr Souroop’s claim is arguable in either option.
[23] Mr Souroop disputed the nature of his dismissal within time, and upon coming to the realisation that the general protections approach would be more preferable he promptly withdrew the unfair dismissal application and sought to lodge the general protections application on the same day. In my view, Da Silveira v A4E Pty Ltd is distinguishable on this fact alone.
[24] Unfortunately Mr Souroop’s application was emailed to the last Fair Work Commission contact he dealt with instead of the Registry and this caused a further delay when he was advised that the application needed to be sent to the Registry and posted it to the same.
[25] In the circumstances I am satisfied, however, that Mr Souroop has explained the entirety of the delay and that he took prompt action to contest the circumstances of his dismissal.
Prejudice to the employer (including prejudice caused by the delay)
[26] There is no submission that the granting of an extension of time represents prejudice to DJR.
The merits of the application
[27] 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.
Fairness as between the person and other persons in a similar position
[28] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[29] For the reasons I have set out above, I am satisfied that Mr Souroop’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 Order5 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr G Souroop the Applicant.
Mr K Reidy on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
March 20.
<PR601472>
1 [2014] FWCFB 6039
2 [2014] FWCFB 5779
3 [2015] FWC 4426
4 [2011] FWAFB 975
5 PR601473
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