Garry Heyward v Norm Flynn Smash Repairs

[2015] FWC 1884

[2015] FWC 1884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Heyward
v
Norm Flynn Smash Repairs
(U2015/2011)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Garry Heyward alleged that the termination of his employment by Norm Flynn Smash Repairs on 11 December 2014 was unfair.

[2] His unfair dismissal application lodged on 5 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 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]

[5] On 13 January 2015 a letter was sent to Mr Heyward advising him that his application had not been lodged within 21 days. That letter advised him of the criteria the Commission must apply in determining whether to grant an extension of time and invited him to complete the outline of argument in support of an application for an extension of time within 14 days.

[6] On 18 January 2015, Mr Heyward contacted my chambers and advised that he had not received the attachment and on 27 January 2015 a copy of the form was resent to him.

[7] On 2 February 2015, Mr Heyward was reminded of the need to reply. A further email was sent by Mr Heyward in which he attached his earlier email. As a consequence a further email was sent on 9 February 2015 attaching the form and giving Mr Heyward until 13 February 2015 to reply.

[8] On 13 February 2015, Mr Heyward forwarded submissions but they were not able to be opened as the document had a virus. On the same day, Mr Heyward was advised of this and he said he would provide another copy by post.

[9] As nothing was received, a telephone message was left for Mr Heyward on 20 February 2015 and 5 March 2015. Further emails were sent to him on these days.

[10] On 11 March 2015, an email was sent to Mr Heyward advising that unless we received a response I would decide the application for an extension of time on the material before me. A follow up phone call was made on 17 March 2015.

[11] To date, Mr Heyward has not provided any material to support an application for an extension of time.

[12] In those circumstances, I find that there are no exceptional circumstances warranting the granting of an extension of time and Mr Heyward’s application is dismissed.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975

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