Geoffrey Birkbeck v City of Canning

[2017] FWC 3677

[2017] FWC 3677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Birkbeck
v
City of Canning
(U2017/4703)

COMMISSIONER PLATT ADELAIDE, 12 JULY 2017

Application for relief from unfair dismissal – extension of time – extension granted.

[1] Mr Geoffrey Birkbeck has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with City of Canning (CoC) which his application form F2 Unfair Dismissal Application advised took effect on 7 April 2017.

[2] This application was lodged on 1 May 2017.

[3] Mr Birkbeck’s form F2 Unfair Dismissal Application identified that it was made out of time and advised of the following reason:

“The office of the representative of the Applicant was closed for a significant period of time due to public holidays. Further the representative of the Applicant was taken ill for a period of approximately 1 week which has contributed to the delay. We request that the Applicant not be penalised for the ill health of the Applicant's representative.”

[4] On 9 May 2017, CoC lodged a form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 7 June 2017, my Associate corresponded with Mr Birkbeck and CoC and advised that the extension of time issue would be considered at a telephone conference on 11 July 2017. 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 Birkbeck was directed to provide a statement concerning the extension of time and any documents to be relied upon by 21 June 2017. CoC was invited to file any material in reply by 4 July 2017.

[6] Mr Birkbeck provided a written submission and a statement from his representative Ms Rebecca Sorgiovanni, which are summarised as follows:

● The delay was caused by the closure of offices of Ms Sorgiovanni (Mr Birkbeck’s representative) between 13-18 April 2017 (the extended Easter period), and the subsequent unavailability of Ms Sorgiovanni and Mr Birkbeck due to illness and representative error.
● The dismissal occurred on 7 April 2017.
● Mr Birkbeck contacted Ms Sorgiovanni and arrangements were made to meet at 12:30pm on 20 April 2017.
● Mr Birkbeck confirmed that appointment on 19 April 2017.
● On the evening of 20 April 2017 (sic), Ms Sorgiovanni was required to attend the emergency department of a hospital and spent most of the night there. At 2:29am on 20 April 2017 Ms Sorgiovanni sent Mr Birkbeck a text message to reschedule the meeting on 20 April 2017. It appears that the date in Ms Sorgiovanni statement is incorrect and should refer to the evening of 19 April 2017.
● On 21 April 2017, the meeting was rescheduled to 3:00pm on 24 April 2017.
● The 24 April 2017 appointment was cancelled by Mr Birkbeck as he was unwell.
● The meeting was rescheduled to 27 April 2017 where Mr Birkbeck instructed Ms Sorgiovanni to lodge an unfair dismissal claim.
● Ms Sorgiovanni did not file the application until 1 May 2017 due to a full diary and the need to attend an ultrasound on 28 April 2017. No other person in her office was available to lodge the claim.
● Mr Birkbeck submits that he did not delay in contacting a lawyer and acted reasonably in all respects.
● Mr Birkbeck expressly stated that he did not make any submission with respect to when he became aware of the dismissal or any action taken by him to dispute the dismissal.
● Mr Birkbeck submits that these circumstances constitute ‘exceptional circumstances’.

[7] CoC provided a written submission which is summarised as follows:

● The circumstances relied upon are not exceptional.
● The occurrence of Easter Holidays within the 21 day period is not an exceptional circumstance.
● No medical evidence in support of Mr Birkbeck or Ms Sorgiovanni’s illnesses was provided despite specific mention in the directions.
● The entire period of the delay has not been explained.
● The employer would be prejudiced by the time and costs of defending the application and further that one of the witnesses will leave the employer of CoC on 12 July 2017.
● The application has no merit.
● Fairness between the applicant and others does not arise.

[8] A hearing was conducted by way of telephone conference on 11 July 2017. A sound file record of the telephone conference was kept. Ms Hinchliffe (of counsel) represented Mr Birkbeck and Mr Sinanovic (of counsel) represented CoC. Permission was granted pursuant to s.596(2)(a) of the Act.

[9] Both parties reiterated and relied upon their written submissions and attached statements.

[10] In reply, Mr Birkbeck advised that he contacted Ms Sorgiovanni on or about 12 April 2017, he explains the initial delay as a result of being impacted by his dismissal.

[11] No evidence to support the medical reasons proffered was provided, no statement was submitted by Mr Birkbeck as the representative ‘ran out of time’.

[12] No evidence was put as to actions by Mr Birkbeck to follow up his claim with his representative post 27 April 2017.

[13] 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.”

[14] This unfair dismissal application by Mr Birkbeck was made 3 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[16] I have also considered the matter of Clark v Ringwood Private Hospital 2 which deals with representative error and sets out a number of principles.

[17] I make the following findings.

[18] Mr Birkbeck made arrangements to seek legal advice on 12 April 2017. The first date upon which his representative was available was on 20 April 2017 as Ms Sorgiovanni’s offices were closed for the Easter period plus an additional day before and after.

[19] Ms Sorgiovanni cancelled the 20 April 2017 appointment. I accept that Ms Sorgiovanni was unable to see Mr Birkbeck on 20 April 2017 due to circumstances beyond her control.

[20] Whilst I have no independent information to support the reason why Mr Birkbeck could not attend the rescheduled appointment on 24 April 2017, I accept he had a doctor’s appointment and that is why he cancelled the 24 April 2017 appointment.

[21] Mr Birkbeck met with and instructed Ms Sorgiovanni to lodge a claim on 27 April 2017. At this time he could have reasonably expected the claim would have been lodged within time.

[22] I accept that the failure by Ms Sorgiovanni to lodge the claim before 1 May 2017 was due to representative error and the need to attend a medical appointment.

[23] I find that whilst the individual delays may not constitute exceptional circumstances, when combined they present an unusual concatenation of events which delayed the lodgement of the application. The applicant needs to provide a credible explanation for the entire period of the delay, 3 and has done so.

[24] I do not accept that the granting of an extension of time represents prejudice to CoC, I do not regard the departure of the potential witness from the employ of CoC represents prejudice when considering the relatively short period of the delay.

[25] In terms of the merits of the application, there is insufficient evidence before me to make an assessment of the competing positions and, accordingly, I have regarded the merits as a neutral factor.

[26] Consideration of fairness relative to other persons in similar positions does not arise and is thus is a neutral factor.

Conclusion

[27] For the reasons I have set out above, I am satisfied that Mr Birkbeck’s circumstances can be regarded as exceptional so as to support an extension of time. An Order 4 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms R.Hinchliffe of counsel on behalf of the Applicant.

Mr A.Sinanovic of counsel on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

11 July.

1 [2011] FWAFB 975

 2 (1997) 74 IR 413

 3   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 4   PR594497

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594490>