Glen Exelby v Ausmech Solutions Pty Ltd T/A Westside Equipment
[2018] FWC 7324
•30 NOVEMBER 2018
| [2018] FWC 7324 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Glen Exelby
v
Ausmech Solutions Pty Ltd T/A Westside Equipment
(C2018/5497)
| COMMISSIONER PLATT | ADELAIDE, 30 NOVEMBER 2018 |
Application to deal with contraventions involving dismissal – extension of time –application dismissed.
Summary
Mr Glen Exelby has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Ausmech Solutions Pty Ltd T/A Westside Equipment (Westside) on 22 August 2018 in contravention of the general protections provisions of the Act.
This application was lodged on 2 October 2018.
The application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:
“I completed an online form on the 20th day after dismissal but did not receive a reply. Contacted FWC by phone on 1st October to be told it was not received (sic). I also completed the fee waiver due to hardship.”
Westside filed a form F8A Employer Response on 25 October 2018 which indicated that the dismissal occurred on 20 August 2018 and raised a jurisdictional objection to the application without specifying the basis that the application was out of time.
A review of the application indicated that it was lodged out of time. This decision only deals with the extension of time issue.
On 25 October 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 16 November 2018. 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 Applicant and the Respondent who were directed to provide an outline of argument by 8 and 15 November 2018 respectively.
Neither of the parties complied with the Directions and the matter was listed for Directions Hearing on 14 November 2018. Mr Exelby sought that the Directions Hearing be adjourned as a result of his attendance at hospital on 14 November 2018. The application was refused. Fresh Directions requiring Mr Exelby to file his material by 14 November 2018 and Westside by 15 November 2018 were issued.
Submissions
Mr Exelby provided written submissions which are relevantly summarised as follows:
· He was personally advised of his dismissal on 20 August 2018. No notice was provided.
· He sought to lodge an online unfair dismissal application on 9 September 2018.
· He did not receive a confirmation email.
· A few weeks later he contacted the Commission and was told that the application had not been received.
· He had retained a printed copy which he amended (by adding the application for an extension of time) which he then lodged personally on 2 October 2018.
· A medical certificate was provided that certified that Mr Exelby was not fit to work on 14 November 2018.
· His separation certificate referred to the employment ceasing on 22 August 2018.
Westside did not lodge any submissions.
A Hearing was conducted by way of telephone conference on 16 November 2018. A sound file record of the telephone conference was kept. Mr Exelby represented himself. Mr Robert Ferguson (Manager) represented Westside.
The Hearing was conducted as a Determinative Conference. Mr Exelby and Mr Ferguson were sworn.
There is little dispute between the parties as to the events that led to the dismissal and what occurred afterwards.
Mr Exelby was employed principally as a driver. He would transport equipment to remote parts of Western Australia, he would normally leave mid-week for a 6 or 7 day round trip. Mr Exelby shares the care of his daughter and previously cared for her every second weekend. This fitted in with Mr Exelby’s work requirements. A change in circumstances then required Mr Exelby to look after his daughter every weekend. As a result of this Mr Exelby advised Westside that he could not drive trucks on the long distance journeys which included weekend work. These journeys were about 70% of the role. Westside were unable to provide Mr Exelby with sufficient non-weekend work to continue his employment and advised he was dismissed on 20 August 2018 but welcomed his return if circumstances changed.
Having enquired with the Commission’s IT department, I am advised that Mr Exelby started to complete a Form F8 application on 9 September 2018 but did not complete (or lodge) same. This is consistent with the information from Mr Exelby. The Commission’s files do not include a completed fee waiver document.
The FAQ on the online general protections section states: “You will receive an automated email confirming that your application has been successfully lodged. If you haven’t received an email or if you’re worried about any of the steps in the online process, you can call the Fair Work Commission on 1300 799 675 and our staff will check that your application has been received.”
Mr Exelby did not receive a confirmation email and unfortunately did not contact the Commission for a further 23 days.
Applicable Law
Section 366 of the Act relevantly states:
“Time for application
(1)An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2)The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] 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 every day 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.”
Consideration
I find that Mr Exelby was dismissed on 20 August 2018 (noting that even if I found that Mr Exelby was not dismissed until 22 August 2018 the outcome would be the same).
This general protections application by Mr Exelby was made 22 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
Mr Exelby states he believed that he lodged the application on 9 September 2018. Unfortunately his attempt was not complete. Mr Exelby has not satisfactorily explained why it took him a further 23 days to follow up his claim. The Commission’s website advises in a number of locations that receipt of applications will be confirmed by email. Mr Exelby has not explained the entire delay.
If an Applicant fails to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. [2]
Any action taken by the person to dispute the dismissal
No other action was taken to dispute the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
There is no submission that the granting of an extension of time represents prejudice to Westside.
The merits of the application
In terms of the merits of the application, there is little material that suggests that the general protection provisions have been breached. It appears that Mr Exelby was not able to perform the inherent requirements of his role due to changes in his personal circumstances. In my view the merits weigh against the granting of an extension of time.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
I have considered all the material before me and I am not satisfied that Mr Exelby’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[3] reflecting this decision will be issued.
COMMISSIONER
Appearances:
G Exelby the Applicant.
R Ferguson on behalf of Westside.
Hearing details:
2018
Adelaide
16 November
<PR702773>
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 901.
[3] PR702775.
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