Gary Yull v Hazell Bros Group Pty Ltd T/A Hazell Bros
[2015] FWC 3196
•8 MAY 2015
| [2015] FWC 3196 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary Yull
v
Hazell Bros Group Pty Ltd T/A Hazell Bros
(U2015/4615)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 8 MAY 2015 |
Application for unfair dismissal remedy - extension of time granted.
[1] These reasons for decision follow the advice I provided to the parties in the course of a conference convened on 7 May 2015.
[2] On 8 April 2015 the Fair Work Commission (FWC) received an application completed by Mr Wright, of counsel on behalf of Mr Yull. That application was made pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Yull seeks relief with respect to the termination of his employment with Hazell Bros Group Pty Limited T/A Hazell Bros (Hazell Bros).
[3] On 14 April 2015 my Associate advised both parties that the application appeared to have been lodged outside of the 21 day time limit specified in s.394(2). The parties were provided with a substantial quantity of material relative to the application and this time limit. Mr Yull was directed to provide to the Commission and to Hazell Bros a statement detailing his position relative to the extension of time issue and a copy of any document upon which he relied in this regard, by close of business 30 April 2015. The parties were advised that this extension of time issue would be considered through a telephone conference to be convened on 7 May 2015.
[4] An Employer’s Response (Form F3) confirmed the Hazell Bros position that the application was lodged outside of the 21 day time limit, and that an extension of time was opposed. In this response Hazell Bros confirmed that Mr Yull’s employment was terminated with effect from 17 March 2015. Further, that no further contact was received from Mr Yull until Hazell Bros was made aware of this application. Hazell Bros asserted that any extension of time would result in a prejudice to it and, particularly, that the application lacked merit. In this respect Hazell Bros provided the following advice about the reasons for the termination of Mr Yull’s employment:
“1. Continued disregard for mandatory company and site safety procedures including failure to complete a mandatory pre task risk assessment on 11th March 2015, putting the Applicant and others at risk of injury and equipment at risk of damage. (Please refer to attached confirmation of termination of employment letter dated 17th March 2015)
2. The Applicant had received a written final warning on 25th February 2015 for similar safety breaches including failing to complete a mandatory pre task risk assessment where the Applicant caused significant damage to plant which was preventable if mandatory procedure was followed. (Please refer to attached letter dated 25th February 2015).
3. The Applicant was fully aware his pattern of behaviour would not be tolerated and puts himself and others at risk of injury, risked significant damage to expensive equipment and jeopardised the tenure of the Respondents contract with the client. The hazardous environment within a major lead smelter is made extremely dangerous where standard safety procedures are not followed at all times. The safety and procedure requirements are reinforced with all employees (including the Applicant) through toolbox and pre‐start meetings on a continual and systematic basis.
4. The Applicant was aware of and had been trained in safety procedures. He had been formally advised that repeated behavior of safety breaches are not acceptable. He acknowledged he understood the requirements and behaviours needed and was fully aware of the consequences for future non‐compliance which would jeopardise employment and will result in termination of employment. (Please refer to attached letter of final warning dated 25th February 2015)
5. As was highlighted by Deputy President Asbury in another unfair dismissal case (FWC 1179/ 2015), we acted at all times in the manner that Deputy President Ashbury stated should be applied as necessary of the employer being: a) management to act and investigate immediately in line with the seriousness of a breach of a mandatory safety procedure: b) the Applicant received sufficiently consistent and clear directions and had been trained and supported with instructions and examples of how to (and the necessity to) comply with procedures and work safely: c) the Applicant was previously formally given clear directions to change the way he worked: d) in all discipline meetings, for previous breaches and the final breach upon which dismissal occurred, the Applicant was on each occasion afforded a proper opportunity to respond to the allegations made against him, and have a representative present: e) we are not confident the Applicant is committed to working safely and are concerned he still does not, and will not accept any responsibility for serious safety breaches.”
[5] Notwithstanding the directions issued to Mr Yull, a statement and a statutory declaration made out by Mr Wright, in respect to the out of time issue was provided by wklawyers on his behalf on 20 April 2015. This statement confirmed that Mr Yull’s application was settled and signed by his representative, Mr Wright on 2 April 2015. Mr Wright advised that the application was put with other outgoing mail on 2 April 2015 and he had no reason to believe that it was not posted to the FWC on that day. Wklawyers acknowledged that the application was not received by the FWC until 8 April 2015 but submitted that, in these circumstances it was made prior to the expiry of the 21 day time limit such that no extension of time was required. In the alternative, wklawyers asserted that any delay was the fault of Australia Post, that there was no prejudice suffered by the employer and that the application had merit such that it would be unfair not to allow an extension of time. The submission did not otherwise address the factors specified in s.394(3) of the FW Act.
[6] At this telephone conference on 7 May 2015, Mr Yull participated but was represented by Mr Wright, of counsel, pursuant to a grant of permission made under s.596(2)(a) and (c). This permission was granted on the basis that I was satisfied that Mr Wright was integrally involved in the lodgement of Mr Yull’s application such that his involvement in the proceedings would both facilitate efficient consideration of the matters and was appropriate and fair in these circumstances. Hazell Bros was represented by its Regional People and Development Manager, Mr Schwaiger. I note that a sound file record of this conference was kept.
[7] My conclusions about this issue are based on all of the information provided to me.
[8] There is no dispute that Mr Yull was dismissed with effect from 17 March 2015. I have been provided with a copy of the letter of that date which confirms that dismissal. An application made under Part 3-2 of the FW Act is only made when it is received by the FWC. It is not “made” for the purposes of s.394 of the FW Act when it is posted or when a party thinks it has been posted. Further, the obligation is on the applicant, and/or their representative, to make the application or demonstrate circumstances which meet the requirements of this section. As a consequence, I have concluded that the application was lodged one day outside of the 21 day time limit specified in s.394(2)(a). The wklawyers’ submission that the application was made within 21 days because it was posted within 21 days, is fundamentally flawed, and is inconsistent with the provisions of the FW Act. This means that Mr Yull can only pursue his application if that 21 day time limit is extended pursuant to s.394(2)(b). Section 394(3) states:
[9] “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.”
Findings
[10] I have considered these factors in the circumstances of Mr Yull’s application.
[11] In Nulty v Blue Star Group Pty Ltd 1 a Full Bench 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.”
[13] In considering each of these factors I have concluded that Mr Yull took advice and relied upon Mr Wright as his lawyer.
[14] I accept that Mr Yull authorised the making of the application on 2 April 2015. Absent evidence to establish this, I do not accept that the late lodgement of the application was the fault of Australia Post. Simply put, the delay reflected the obligation on wklawyers to lodge the application on time. Wklawyers did not do this and, to this extent, the explanation for the delay must be a consequence of representative error.
[15] On the material before me I am satisfied that Mr Yull acted well within the 21 day time limit so as to pursue the matter. I do not consider that the delay reflected any error or omission on his part.
[16] I have adopted the Full Bench position in Robinson v Interstate Transport Pty Ltd 2 in the following terms:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.””
[17] Consequently, I consider that the representative error which was the reason for the delay favours a finding that Mr Yull’s circumstances are exceptional in that Mr Yull had an acceptable reason for that delay, and it would be unfair to visit the consequences of an error on the part of wklawyers on him.
[18] Mr Yull did not take any other action, apart from authorising this application, to dispute the termination of his employment.
[19] I am not satisfied that the one-day delay represents prejudice to Hazell Bros. In terms of the prejudice associated with that extension of time, Hazell Bros advise that Mr Yull has been replaced. Notwithstanding this, I do not consider that the issue of prejudice is a substantial consideration mitigate against an extension of time
[20] The merits of the application represent a significant consideration in this matter. The information provided by Hazell Bros gives rise to substantial doubt about the merits of the application. That information indicates that Mr Yull was given a final warning with respect to a breach of safety procedures on 25 February 2015. It indicates that the termination of his employment followed a similar significant safety breach. The safety breach referred to incorporates the requirement that employees undertake necessary inspections and record or complete logbooks, in addition to issues associated with whether Mr Yull was responsible for reversing a truck into a cliff. Hazell Bros assert that the risk assessment and logbook requirements were specifically addressed in the 25 February 2015 final warning. Hazell Bros assert that Mr Yull had access to representation through his union in the disciplinary investigation and that he was given an opportunity to respond before the termination of employment decision was made. Information which establishes substantial deficiencies in the termination of employment process has not been put before me. In these circumstances it is open to me to refuse an extension of time on the basis that Mr Yull’s application has no reasonable prospect of success. Notwithstanding this, I have elected not to found a refusal to extend time for the application on this basis. It seems to me that Mr Yull should have the opportunity to demonstrate unfairness associated with his application through a detailed consideration of his application. However, Mr Yull should be on notice that a failure to identify substantive deficiencies relative to the termination of employment decision and process means that his application will be refused and will leave him open to a subsequent costs application.
[21] I am satisfied that the positions adopted by the Fair Work Commission relative to other comparable situations support both the refusal or an endorsement of the extension of time request but, in the majority of cases, directly comparable situations would favour the granting of an extension of time.
Conclusion
[22] For the reasons I have set out above, I am satisfied that Mr Yull’s circumstances meet the significant test necessary to be described as exceptional such that the extension of time will be granted in this instance. An Order (PR567183) reflecting this conclusion will be issued and the application will be referred for conciliation.
Appearances (by telephone):
A Wright counsel for the Applicant.
J Schwaiger for the Respondent.
Hearing (Conference) details:
2015.
Adelaide:
May 7.
1 [2011] FWAFB 975
2 [2011] FWAFB 2728
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