Gareth Dudley v Ceduna Koonibba Aboriginal Health Service (Aboriginal Corporation)

[2015] FWC 1431

[2015] FWC 1431

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gareth Dudley
v
Ceduna Koonibba Aboriginal Health Service (Aboriginal Corporation)
(U2015/2517)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 MARCH 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Dudley has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Ceduna Koonibba Aboriginal Health Service Aboriginal Corporation (the Health Service). At a telephone conference convened on 3 March 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section 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 Dudley’s application was lodged on 22 January 2015. In that application Mr Dudley advised that he became aware of the termination of his employment on 30 December 2014. Mr Dudley asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time.

“Prior to the current situation arising I was going through deep depression and anxieties relating to a lot of work related matters that had previously been raised by other staff members making false accusations about myself.

So I felt as though I was being burdened with a lot of work issues and I did not have the right frame of mind to be able to deal with everything that I was being faced with.

I had also left my place of residence on the 18th December 2014 as my family was having Christmas in Adelaide and we were going to spend most of the school holidays over in Adelaide with family for Christmas and News Years.

My former workplace managers were on leave, so I was unable to reach or contact any of them because of the closure of the workplace for the festive season.

Feel free to contact me for any further information about my delay in lodging my unfair dismissal application.”  1 (sic)

[3] On 2 February 2015 my Associate corresponded with both Mr Dudley and the Health Service and advised that the extension of time issue would be considered through a telephone conference on 3 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Dudley was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 24 February 2015.

[4] Nothing further was received from Mr Dudley until 2 March 2015 when he provided advice in the following terms:

“My statement for the extension of time to be provided to myself is as follows;

- I was unaware that I had only 21 days from notice of termination to lodge my unfair dismissal claim as I have never made such an application in my previous employment history.

- I left my place of residence on the 18th December 2014, as my family were spending Christmas and new year holiday period over in Adelaide and with the situation at hand I was afraid that I might have done something bad to myself with no one at home with me.

- My diagnosed medical condition (depression and anxiety) had come back especially after being informed of this accusation, which lead me not being in my right frame of mind and causing me daily stresses and pressure on life with my family.

- I had only became aware of my termination on about 30th December 2014 through my partner contacting the payroll officer to request a payslip of mine.

Please consider these matters when hearing my case. Thank you for your time in advance

Kind regards
Gareth Dudley”

[5] The Employer’s Response (Form F3) to the application confirmed that it objected to an extension of time.

[6] Mr Dudley participated in the telephone conference. Ms Paerata from the Respondent also participated in this conference. At the conference Mr Dudley agreed that he was aware on 16 December 2014 that he was suspended from work and that his employment could be terminated at a meeting planned for 18 December 2014. He confirmed that he did not attend that meeting and declined to participate by telephone. He left Ceduna for Adelaide on 18 December 2014 without management approval for further leave but thought this would be regarded as leave without pay. 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.

[7] 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.”

[8] On the information before me I am satisfied that the termination of Mr Dudley’s employment took effect on 18 December 2014 such that the application was made some 14 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.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[9] Mr Dudley's reasons for the delay were, firstly, that he was not aware of the 21 day time limit. That reason cannot be regarded as acceptable or exceptional. Secondly, that he was depressed at that time. Medical evidence to substantiate his inability to lodge this application has not been provided to me. Secondly, Mr Dudley referred to a holiday he took with family members in Adelaide over the Christmas period. He commenced that holiday on the same day that he was aware that his employment was being reviewed. I have considered these reasons for the delay, but I do not consider that they are of the nature of exceptional circumstances. It is clear from Mr Dudley's application that he asserts that he was only aware of the termination of his employment on 30 December 2014. However, because he relied on his holiday in Adelaide which occurred before that date as the basis for an extension of time, I do not find his later submission that he did not become aware of that dismissal until 30 December 2014, particularly credible. I think it more likely that Mr Dudley was aware of the termination of his employment on or soon after 18 December 2015. Notwithstanding this, even if I had accepted that Mr Dudley did not become aware of the termination of his employment until 30 December 2014, his application was not lodged until 22 days later. I am not satisfied that, apart from the late lodgement of this application, Mr Dudley pursued other actions so as to challenge the termination of his employment. I do not consider that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[10] In terms of the merits of the application, the information before me does not enable a definitive conclusion. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[12] Accordingly I have concluded that the material before me does not establish that Mr Dudley'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 (PR561538) giving effect to this decision will be issued.

Appearances (by telephone):

G Dudley on his own behalf.

P Paerata for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 4.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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