George Przedpelski v Trustee of Czapp Pty Ltd T/A Airport Doors Pty Ltd
[2012] FWA 4966
•22 JUNE 2012
Note: An appeal pursuant to s.604 (C2012/4500) was lodged against this decision - refer to Full Bench decision dated 5 October 2012 [[2012] FWAFB 8577] for result of appeal.
[2012] FWA 4966 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Przedpelski
v
Trustee Of Czapp Pty Ltd T/A Airport Doors Pty Ltd
(U2012/5850)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 22 JUNE 2012 |
Jurisdiction - extension of time - second application.
[1] On 8 March 2012 Mr George Przedpelski made an application for an unfair dismissal remedy with respect to his dismissal by Trustee of Czapp Pty Ltd trading as Airport Doors Pty Ltd on 5 November 2011. On 26 March 2012 in its “Employer’s Response to Application for Unfair Dismissal Remedy”, the employer objected to the application on the ground that Mr Przedpelski’s application was filed outside the 14 days referred to in s.394 of the Fair Work Act 2009 (‘the Act’).
[2] The parties were directed to file submissions. The matter was listed for hearing on 8 June 2012. The respondent did not file submissions as directed, and provided no explanation for its failure to do so. The respondent did not attend.
Second Application
[3] The applicant filed an application pursuant to s.365 of the Act alleging that he was dismissed in contravention of Part 3-1 of the Act 1. A conciliation conference was held with respect to that application, and a certificate was issued on 24 February 2012 certifying pursuant to s.369 that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. The applicant was advised that he had 14 days from the date of the certificate within which to make a general protections court application.
[4] Instead of making such an application, on 26 March 2012 the applicant made an application for an unfair dismissal remedy under s.394. There was a delay of about four weeks between the date of the certificate and the date on which an application was lodged.
The Second Application Permitted
[5] Pursuant to s.725 there is a ‘general rule’ that two applications may not be made:
‘725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.’
[6] The applicant made a general protections application. Section 727 provides:
‘727 General protections FWA applications
(1) This section applies if:
(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.’
[7] In this case the applicant has made a general protections application. The applicant advised me that the application has not been withdrawn 2, so that s.727(1)(b)(i) does not apply. The application has not failed for want of jurisdiction within s.727(1)(b)(ii). However, the application resulted in the issue of a certificate within s.369. This means that the exclusion in s.727(1)(b)(iii) applies. Section 727 does not therefore apply to the applicant.
[8] Sections 728, 730, 731, and 732 do not apply. The only section of those listed in s.725 which applies is section 729 which provides:
‘729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.’
[9] Section 725 excludes an application to which any two of sections 726 to 732 applies. In this case only one of those sections applies. The general rule in s.725 does not therefore prevent the applicant in this case from making an unfair dismissal remedy.
Out of Time Decision
[10] In this case the application under s.394 was made over three months outside the 14 days from dismissal provided by s.394, which provides:
‘394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.’
[11] The applicant asks that I allow a further period for the application to be made on the basis that there are ‘exceptional circumstances’.
(a) Reason for the delay
[12] Turning to deal firstly with the reason for the delay, within s.394(3)(a), the applicant submitted that he was seeking legal advice on for example his ability to make such an application given the general rule against two applications in s.725 of the Act, and because he ‘realised that another remedy is more appropriate in my case; it means an unfair dismissal application’ 3.
(b) Whether the person first became aware of the dismissal after it had taken effect
[13] The applicant received the letter of dismissal on or about 30 September 2011 4.
(c) any action taken to dispute the dismissal
[14] The applicant did not complain to the employer about the dismissal. He did make a complaint to the Fair Work Ombudsman, and he may also have sought independent legal advice although this is not entirely clear 5.
(d) prejudice to the employer
[15] The applicant submitted that there was no prejudice to the employer. However the length of time after the dismissal is not a short period.
(e) the merits of the application
[16] There is limited material in relation to this point before me. The applicant said that his medical condition had been ‘caused by the respondent. There are rock-solid evidences to substantiate such type of allegation’ and other matters. I do not find that the application lacks merit, and this factor does not count against the applicant.
(f) fairness as between the person and other persons in a similar position
[17] The applicant submitted that what was unique or extremely rare in this case is ‘poor English skills ...; physical and intellectual impairment; misleading, deceptive of fraudulent conduct by the employer proven beyond reasonable doubt; the extreme dishonesty of respondent; the intentional injury of the employee; the broken agreement between Commissioner Roe and the respondent; a conspiracy to defraud the applicant from entitlements between the Fair Work Ombudsman and the legal representative not be involved in Magistrates Court proceedings; and attempts to kill during violence, intimidation and bullying’ 6. In his written submission the applicant made a range of other allegations of a most serious nature7.
[18] The self described ‘poor English skills’ of the applicant did not prevent him from putting a case which was both eloquent and clear, and did not prevent him from listening to the questions I asked and responding in a direct and comprehending manner. There are many self represented applicants who have much less ability to present a case than the applicant. It is true that he has a heavy accent but in my view his English skills are adequate and do not count towards establishing a case for extension of time.
[19] The employer described the applicant as ‘vexatious’ in his response to the applicant. It said that the Fair Work Ombudsman had found all outstanding entitlements had been paid, that he refused to accept a settlement in relation to miscalculation of long service leave. It said that the applicant had been given ample time to respond to a series of letters prior to his termination, and the termination was procedurally fair. It said that the applicant had admitted in his application that he was not able to return to the duties of his role, and the company was not able to hold his position open any more. The employer took all factors in account before making a decision to no longer hold his position open to him.
[20] The letter of termination 8 stated that the employee was dismissed because ‘there is no reasonable prospect of you returning to work’ after nine months absence on unpaid leave over the last twelve months.
[21] Overall I am not prepared to accept the applicant’s account of what are on their face the most serious allegations without sufficient corroboration, which I do not have before me. As Dixon J said in Briginshaw v. Briginshaw 9:
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ... [A]t common law ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency .... [emphasis added]
[22] I am not prepared to simply accept claims made by the applicant that the respondent engaged in criminal conduct which included ‘industrial manslaughter’, ‘attempts to kill’, ‘physical assaults and rape’, ‘massive corruption’, failure to pay income tax and other matters 10. I note that the employer described the applicant in its response as ‘vexatious’. I had the opportunity to observe the applicant putting submissions and in effect giving evidence, and I have real doubts about the veracity of the claims made in the absence of corroborating material. I note that the respondent did not appear, but there may well be a reason for this, namely that it appears to be run at present by trustees of a will11.
Exceptional Circumstances
[23] In Nulty v. Blue Star Group Pty Ltd 12a Full Bench of this tribunal considered the term ‘exceptional circumstances’ as it is used in s.366. These observations are apposite to s.394, as the provisions are the same or similar in nature:
‘[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 3 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 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5
“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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.’
[24] In this case the delay by reason of seeking legal advice is not out of the ordinary course, unusual or special, nor are the circumstances of delay caused by an applicant considering which of the various remedies which are open is most appropriate. On the material before me the circumstances are not exceptional. This is the case even if I was to count the 14 days from the issue of the certificate, and ignore the earlier period of delay. In those circumstances the matter is still out of time by two weeks. Nor is there a satisfactory explanation for that period of delay, given the considerable elapse of time since the dismissal, and during which legal advice and other matters could have been considered.
[25] Taking into account all the circumstances I have decided to refuse the application for an extension of time. An order dismissing the matter is contained in PR525394.
DEPUTY PRESIDENT
Appearances:
George Przedpelski, the applicant
Hearing details:
2012
Melbourne
8 June
1 C2011/7069
2 PN32
3 PN58-PN80
4 PN67-68
5 PN69-82
6 PN88
7 Witness statement, paragraphs 16-18
8 Exhibit P2
9 (1938) 60 CLR 336 at 362-363
10 Exhibit P1, paragraph 18
11 PN42
12 [2011] FWAFB 975
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