Gerard Hawkes v Ertech Holdings Pty Ltd

[2015] FWC 4725

[2015] FWC 4725 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gerard Hawkes
v
Ertech Holdings Pty Ltd
(U2015/7128)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 13 JULY 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Hawkes and the respondent ended on 6 March 2015. Mr Hawkes lodged his application at the Fair Work Commission on 24 April 2015. Mr Hawke’s application was lodged 28 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Hawkes. I wrote to him on 13 February 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Hawkes provided a comprehensive statement on 10 May 2015. I issued an Order refusing Mr Hawkes’s application for an extension of time and dismissed his application on 30 June 2015.

[4] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[6] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] Mr Hawkes explanation for delay as set out in his application for unfair dismissal at paragraph 1.4 is set out below.

“6 March 2015 - Received a phone call from HSE Superintendent while overseas on Leave, in Bali where I have an established address 61 JL Danau Tandano, Sanur, Bali Indonesia.
Appendix C:
6 March 2015 - received a (sic) email letter of Termination by Redundancy, but have received no notification by mail to my contact address in Perth, Australia, 23 Matthew Avenue, Leeming Perth Australia.
10 March 2015 - Informed Ertech that due to the notice while on leave and overseas I would be not be in a position to finalise the Termination by Redundancy by returning Ertech property until I was able to return to Perth based on the changed circumstances enforced by the Termination. My delay in retuning was part due to re-scheduled overseas medical treatment undertaken in late March 2015 as a result of this forced Termination.
6 March - 8th April 2015 - Varied Correspondence between to (sic) Ertech Management seeking for them to reconsider my Termination as I believe I was unfairly dismissed to resolve the matter:
March 7 2015: letter to Managing Director Requesting re-consideration
March 12 2015: unanswered phone call message to Managing Director Requesting re-consideration
March 18 2015: Email to Ertech seeking a response to my emails requesting re-consideration
March 25 2015: Response from Managing Director
Appendix D:
April 7 2015: Email to senior Ertech Chief Operational Officer (Former Managing Director) seeking reconsideration of my Termination.
April 8 2015: Response from Chief Operational Officer.
Appendix E:
20 - 31st March 2015 - Medical Treatment and post recovery (2 weeks). Bangkok International Dental Centre surgery - re-schedule as a result of the Timing of the Termination by Redundancy.
Appendix F:
13th April 2015 - Returned to Australia from Bali
14th April 2015 - Returned to Perth Office to return property of Ertech, as the first available time considering the changed work circumstances forced upon me.
15th Tuesday 2015 - Termination and Redundancy payment made - had provided Ertech a personal assurance that all property of Ertech I had in my possession would be returned
- all pays withheld since notice of Termination on the 6th of March and 5 weekly pay cycles had passed, causing me personal hardship.
Appendix G:
16th April 2015 - Email to Ertech Management seeking further review of Termination to resolve the matter or alternatively to submit an Unfair Dismissal Application with the Fair Work Commissioner (sic)
22nd April 2015 - Email received from Ertech IR/HE (sic) Advisor reasoning incorrectly their maintained decision
23rd April 2015 - Email to Ertech IR/HR indicating I would be filing an Unfair Dismissal Application with the Fair Work Commissioner (sic) to resolve the matter.”

[8] In his response of 10 May 2015 Mr Hawkes expanded on the explanation provided by him in his application and provided documentary support.

[9] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

reason for the delay-s.394(3)(a)

[10] The reasons Mr Hawkes provided for his delay in lodgement were :

● he was overseas when notified of the termination of his employment and didn’t fully understand what support was available to him and any conditions surrounding the termination of his employment;
● he attempted to negotiate with his employer and seek a reconsideration of his termination of employment and considered that these negotiations would extend the date of termination of employment;
● he contacted a support provider on 12 March 2015 but they were not of assistance;
● he did not receive a formal response from the respondent until 25 March 2015 when he was undergoing dental treatment in Thailand; and
● he continued to negotiate with the respondent and had met with the respondent on 14 April 2015 to finalise his dismissal, collect delayed payments and return equipment.

[11] While sympathetic to these circumstances I was not persuaded that Mr Hawkes difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[12] Mr Hawkes became aware of the end of his relationship with the respondent on 6 March 2015. He had assumed that the final date of termination would not occur until his internal negotiations had been completed. He also pointed out that he did not receive a hard copy of the letter of termination of employment and that the letter of dismissal on 6 March 2015 contained an incorrect spelling of his name

any action taken by the person to dispute the dismissal-s.394(3)(c)

[13] Mr Hawkes disputed his dismissal by engaging in post dismissal negotiations and by lodging this application.

prejudice to the employer-s.394(3)(d)

[14] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Hawkes’ application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[15] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Hawkes and other persons in a similar position-s.394(3)(f)

[16] There was no issue of fairness in relation to any other person in a similar position.

[17] Mr Hawkes made assumptions about the date of termination without satisfying himself about those matters. He was aware that his employment was terminated and remained terminated until these negotiations were successful. Although there was a period during which he was incapacitated by having surgery, he otherwise had the opportunity to enquire as to time limits and other issues. It was possible for him to lodge his application on time following his final interview with the respondent but he did not do so. He delayed for a further lengthy period. Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. I was not satisfied that Mr Hawkes’ circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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