Graham Michell v Genesee and Wyoming Australia Pty Ltd

[2015] FWC 1935

[2015] FWC 1935

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graham Michell
v
Genesee & Wyoming Australia Pty Ltd
(U2015/3647)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 24 MARCH 2015

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

[1] Mr Michell 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 Genesee & Wyoming Australia Pty Ltd (GWRR). At a telephone conference convened on 24 March 2015 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.

[2] Mr Michell's application was lodged on 4 March 2015. In that application Mr Michell advised his employment was terminated on 6 February 2015. Mr Michell asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“Lodged by post not received at Commission on 4/3/15.
Was posted on 20/2/15
Now Faxed.” 1

[3] I note that the application was received by facsimile.

[4] On 5 March 2015 my Associate corresponded with both Mr Michell and GWRR and advised that the extension of time issue would be considered through a telephone conference on 24 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Michell was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 March 2015.

[5] Further information was received from Mr Michell in the form of a Statutory Declaration which stated:

“I lodged my application for unfair work dismissal by posting it on Friday 20 February 2015.
When I found out it had not been received I then faxed a copy to the Unfair Work Commission on 4th March 2015.”

[6] Mr Michell also provided a statement in the following terms:

“As stated in unfair dismissal application this form was lodged by post and not received at the Commission by 4/3/15.
The reason that I found this out is that I had not been notified in writing.
I rang the Commission to see what was going on with my application.
I was informed that they had not received it and to submit a copy of it by the end of the day, and fill out section 1.4 and explain that I had lodged it my mail
This I did by fax.
Attached to this is a signed statutory declaration stating that it had been posted.”

[7] The Employer’s Response to the application confirmed that GWRR objected to an extension of time.

[8] Mr Michell participated in the telephone conference. Mr Martin, of Counsel requested a grant of permission to represent GWRR pursuant to an unopposed grant of permission under s.596(2) of the FW Act. I refused that request on the basis that I was not satisfied that the issue was sufficiently complex so as to warrant legal representation, or that any other appropriate basis upon which to found that representation existed. Ms Hoey and Ms Radford from the Respondent also participated in this conference. 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.

[9] Mr Michell was given an opportunity to provide additional information. His advice confirmed the statements provided.

[10] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[11] On the information before me I am satisfied that the application was made some 5 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.”

[12] Mr Michell's reason for the delay is simply his assertion that the original application, which he asserted was posted on 20 February 2015 went missing. I note that the application which Mr Michell advises was sent on 20 February 2015 has not been received by the Fair Work Commission. I do not regard the "lost in the mail" explanation to reflect an exceptional circumstance. It is clear from Mr Michell's application that he was aware of the termination of his employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Michell 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.

[13] In terms of the merits of the application, I have noted the information provided by Mr Michell in the application and the material provided by GWRR. Notwithstanding this, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[15] Accordingly I have concluded that the material before me does not establish that Mr Michell'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 (PR562243) giving effect to this decision will be issued.

Appearances (by telephone):

G Michell on his ownbehalf.

V Hoey for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 24.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562242>