Gollan v Willoughby SES

[2016] FWC 109

[2016] FWC 109

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Andy Gollan
v
Willoughby SES
(U2015/16287)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 6 JANUARY 2016
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 Gollan and the respondent ended in October 2010. Mr

Gollan lodged his application at the Fair Work Commission on 27 November 2015. Mr

Gollan’s application was lodged almost 5 years outside the statutory time limit.

[3]        When determining this application I had before me the Application for Unfair

Dismissal lodged by Mr Gollan. I wrote to him on 4 December 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 Gollan provided a statement. I issued an Order refusing his

application for an extension of time and dismissed his application on 18 December 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:

[2016] FWC 109

(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.’

[2016] FWC 109

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.”

[2016] FWC 109

[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 s394 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 s394 (3) must be considered and weighed when deciding whether or not

exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] 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)

[8]        The reasons Mr Gollan provided for his delay in lodgement included some distress and

illness. While sympathetic to these circumstances I was not persuaded that his 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)

[2016] FWC 109

[9]        Mr Gollan became aware of the end of his relationship with the respondent in 2010.

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

[10]      Mr Gollan disputed his dismissal by lodging this application.

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

[11]      I was satisfied that there would be no greater prejudice to the respondent caused by Mr

Gollan’s 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)

[12]      Merit was a negative issue in my consideration of this application. In my opinion this

application was lodged in the wrong jurisdiction.

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

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

[14]      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. Mr Gollan’s

circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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