Gordon Butler v It's Fresh Pty Ltd SA T/A It's Fresh

[2016] FWC 490

[2016] FWC 490

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gordon Butler
v
It’s Fresh Pty Ltd SA T/A It’s Fresh
(U2016/111)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 JANUARY 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Butler has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with It’s Fresh Pty Ltd SA (It’s Fresh). At a telephone conference convened on 27 January 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion. I note that I have used the discretion available in s.586 of the FW Act to correct the employer name identified in the application.

[2] Mr Butler's application was lodged on 7 January 2016. In that application Mr Butler advised his employment was terminated with effect from 15 December 2015 Mr Butler asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“I believe it is within 21 calendar days, due to Christmas and Public Holidays
If I have misunderstood pelase also consider the below.
Have never filled a report with the Fair Work Commission before, so looked at all avenues to take before proceeding.
Was waiting for Final letter to arrive from Drakes.
Collated all relevant informaiton felt was necessary for the Commission.
Having a few issues with attaching files.” 1 (sic)

[3] On 11 January 2016 my Associate corresponded with both Mr Butler and It’s Fresh and advised that the extension of time issue would be considered through a telephone conference on 27 January 2016. Substantial information about the extension of time issue was provided to the parties. Mr Butler was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 20 January 2016.

[4] An additional request for information from Mr Butler was made on 21 January 2016. Mr Butler’s sister, Ms L Butler forwarded an email on 25 January 2016. In that email Ms Butler advised that she had not responded to the earlier direction because she misunderstood it and was then away and not able to communicate by email. She confirmed that she had lodged the application late because she had assumed that public holidays would not be taken into account in the counting of the 21 day time limit. She also confirmed that “other avenues were looked into”, but did not specify these actions.

[5] The Employer’s Response to the application objected to the application on the basis that it was lodged outside of the statutory time limit. In addition, It’s Fresh provided information relative to the termination of Mr Butler’s employment. That information was to the effect that Mr Butler was given a warning on 13 November 2015 as a consequence of a complaint made by another employee relative to bullying and inappropriate language. A further complaint was made by the same employee in December 2015 which led to the termination of Mr Butler’s employment.

[6] Mr and Ms Butler participated in the telephone conference. Mr Parker sought permission to represent It’s Fresh. That request was refused on the basis that I was not satisfied that any of the requirements of s.596(2) were met in these circumstances. Consequently, Ms Fraser represented It’s Fresh. Mr Butler was given an additional opportunity to expand on the information provided in the application. In this regard he advised that he was waiting to receive written confirmation of the termination of his employment. He confirmed that he was unaware of the 21 day time limit until the Fair Work Commission letter of 11 January 2016. He considered that the 21 day time limit was exclusive of the public holidays over this time.

[7] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 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.”

[9] On the information before me I am satisfied that the application was made 2 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[10] The submissions put for Mr Butler disclose a number of reasons for the delay. These relate firstly, to his late receipt of the written advice confirming the termination of his employment. In his application, Mr Butler acknowledges that he was told he was dismissed at the time of the termination of his employment. I have accepted that Mr Butler’s receipt of that correspondence was delayed notwithstanding that It’s Fresh asserted that this was because Mr Butler had not advised of a change of his address. In any event, I do not accept Mr Butler’s assertion that he was unable to lodge the application without receipt of that correspondence. The unfair dismissal application form at paragraph 3.1 asks “What were the reasons for the dismissal, if any, given by your employer?” That question clearly does not require that an applicant must be aware of the reasons for termination. If Mr Butler considered he was not told of the reasons for his dismissal he could have recorded that in his response to this question.

[11] Secondly, Mr Butler confirmed that he was involved in the process of making the application together with his sister but was not aware of the 21 day time limit until he received advice about this issue from the Fair Work Commission on 11 January 2016. In this respect, it is well established that ignorance of the 21 day time limit cannot represent an acceptable reason for a delay, or an exceptional circumstance. Mr Butler’s alternative positions relative to the 21 day time limit need to be seen in the context of his lack of awareness of that time limit. Mr Butler’s assertion that the 21 day time limit should not take into account public holidays is misconceived. The Acts Interpretation Act 1901 3 establishes that the effect of a public holiday on the 21 day time limit is limited to a situation where that 21 day time period expires on a public holiday. This is not the case here and the 21 day time limit is not extended as a result of public holidays which occurred subsequent to the termination of Mr Butler’s employment. Further, Ms Butler’s position is that the delay was effectively the result of her error as her brother’s representative in that she failed to properly act within the 21 day time period. It is well established that representative error may form an appropriate basis for an extension of time4 but that it does not automatically create such a circumstance. The actions and contribution of the applicant are fundamental in this respect. In this respect, Mr Butler agrees that he was involved in the application process such that I am unable to regard these circumstances as constituting representative error.

[12] Finally, Mr Butler confirmed that, following the termination of his employment he had been depressed, to the extent that he had not pursued other employment opportunities. I accept this is most likely the case, but there is no evidence before me that confirms that Mr Butler was unable to lodge the application before 7 January 2016.

[13] Mr Butler confirmed that he and his sister spoke with and emailed lawyers before deciding to pursue the application themselves. That may be the case, but the information before me does not establish this as an acceptable reason for the delay.
[14] Having considered all of these circumstances, I am not satisfied that Mr Butler’s explanations disclose an acceptable reason for the delay or circumstances which can be regarded as exceptional.

[15] It is clear from Mr Butler's application that he was aware of the termination of his employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, and preliminary enquiries about the options open to him, Mr Butler pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[16] In terms of the merits of the application, the information before me does not enable any conclusion to be reached so that I have regarded this factor as a neutral consideration relative to the extension of time.

[17] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[18] Accordingly I have concluded that the material before me does not establish that Mr Butler's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR576408) giving effect to this decision will be issued.

Appearances (by telephone):

G and L Butler for the applicant.

L Fraser for the respondent.

Hearing (Conference) details:

2016.

Adelaide.

January 27.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

 3   Acts Interpretation Act 1901 (Cth) s 33

 4   See, for example Clark v Ringwood Private Hospital (1997) 74 IR 413

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<Price code C, PR576407>