Greenhill v OPG Electrical Pty Ltd

[2016] FWC 1092

[2016] FWC 1092

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Steven Greenhill
v
OPG Electrical Pty Ltd
(U2015/14986)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 19 FEBRUARY 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 Greenhill and the respondent ended on 13 October 2015.

Mr Greenhill lodged his application at the Fair Work Commission on 11 November 2015. Mr

Greenhill’s application was lodged 8 days outside the statutory time limit.

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

Dismissal lodged by Mr Greenhill. I wrote to him on 18 November 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 Greenhill provided a comprehensive statement on 2 December

2015. I issued an Order granting the applicant an extension of time to 11 February 2016.

[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 1092

(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 1092

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 1092

[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]        Mr Greenhill set out the reasons for his delay in paragraph 1.4 his application. This is

set out below:

“I am suffering Severe Depression and was at the time, I attended my Doctor previous

to my dismissal and can provide medical certification or a letter to prove my

condition.

th

I am slowly improving due to Treatment and Therapy and have only yesterday 10

Nov, sought advice regarding this matter and am immediately lodging the

Application.”

[8]        Mr Greenhill’s correspondence in response to my enquiry is set out below.

[2016] FWC 1092

“I refer to your letter dated 18 October 2015, and thank you for the opportunity to

make submissions regarding my out of time unfair dismissal application. Please find

these submissions below.

1)   I was summarily dismissed on 13 October 2015. The reason I was given

was “timesheet fraud” (which is denied). I was not given any chance to

respond, or to provide what was a simple explanation to the issue. I was not

afforded any notice, or the right to a support person for this brief

notification of my dismissal. A company worker then simply came to

collect the work vehicle from my home that evening. I was denied any form

of natural justice in this unilateral action by the employer. I was presented

with the fact that situation was non-negotiable and no discussion would be

entered into regarding it.

2)    In the weeks preceding the dismissal I was suffering from mild anxiety and

depression. I was managing this with assistance from treating doctor. As a

result of the dismissal my condition deteriorated significantly to the point

of my suffering from debilitating acute depression and anxiety. I sought

and received additional support from my general practitioner following the

dismissal. Please refer to a medical certificate from Dr Corbett at

Attachment A.

3)   As a result I was not in a position to be able to function properly, to the

point my self and domestic care lapsed.

4)    On the evening of 10 November 2015 I overcame my acute depression and

anxiety enough to contact a family friend, who has experience in workplace

relations matters (Mr Andrew Kiejda) to seek his advice. Mr Kiejda

indicated that it sounded like I may have a claim for unfair dismissal, but

that I had needed to have lodged the claim within 21 days of being

dismissed - and that extensions were only given for very unusual

circumstances. I advised Mr Kiejda that I had been managing mild anxiety

and depression up to the dismissal, but that the dismissal dramatically

escalated that to my becoming severely depressed and anxious in an acute

phase as a result of the actions taken by the employer, that I had been

seeing my doctor, but had been unable to comprehend the situation before

me (or many other usual personal activities) until shortly before I called

him. Mr Kiejda advised me to get a certificate or statement from my doctor

and lodge a claim with the Fair Work Commission immediately, which I

did on 11 November 2015.

5)    I submit that my situation constitutes “... a circumstance which is such as to

form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [1999] UKHL 4;

[2000] 1 QB 198 at 208. My basis for making this claim is the severity of

my condition following the employer’s actions. While I appreciate that for

many people shock, and a form of depression may follow being terminated,

[2016] FWC 1092

especially in such an unfair way as I was, the acute severity of my

condition is what set this situation apart from other cases.

6)    I submit that the process followed by the employer, combined with my

underlying but managed condition, is such that it took what may be the

usual shock of being terminated and resulted in it being escalated into

something more debilitating to the point that I struggled to take any

meaningful action. In dismissing me without affording any opportunity to

provide a simple response to the allegations, with no process whatsoever, in

such a final way, the action of the employer led to my inability to adhere to

the Fair Work Commission’s rigid deadline.

7)   Put simply, there was a reasonable explanation for timesheet irregularities,

involving a pattern of work discussed with and directed by my manager.

My manager could account for my activities at all times.

8)   I submit that my dismissal was harsh, unjust and unreasonable in all the

circumstances for the following reasons:

a.	There was not a valid reason for my dismissal
b.	I was notified of a reason; but
c.	I was not offered any opportunity to respond or provide a simple

explanation

d. I was not offered, nor given the opportunity to have a support person

available for the dismissal conversation. In fact I was given no advance

notice of the conversation at all

e. I had not been warned about any unsatisfactory performance, nor given

any other warnings

f. The employer’s enterprise is of sufficient size to at least allow an

informal or basic process providing an opportunity to respond to

allegations, none of which occurred in this case

g.	The method of dismissal caused harm and injury to my health
h.	The actions of the employer have resulted in significant financial loss,

despite my taking action to mitigate that loss

i.     I was not a new employee, I had worked for the company continuously

since July 2014

j. The application was lodged some 8 days out of time. I submit that this

timeframe

k. does not hinder the employer in any material way in defending this

claim should they choose to defend it.

[9]        I asked Mr Greenhill to provide further medical evidence. My correspondence is set

out below.

“Could you please obtain from your doctor a further report dealing with the likelihood

of your anxiety and depression, and the treatment for that condition, affecting your

ability to lodge this application.”

[10]      The medical evidence provided by Mr Greenhill’s treating doctor is set out below.

[2016] FWC 1092

“I have known Steven Greenhill, aged 35 yrs, for many years as a regular patient.

nd

This is to certify that Steven Greenhill has been seen at this surgery on 22 September

st th

2015, 1 October 2015 and 13 October 2015 for acute anxiety and depression. The

symptoms of this condition effected motivation, concentration and anxiety levels.

Steven was prescribed medication. The medication may have decreased energy levels

and appetite. These symptoms affected Steven’s ability to lodge his application for

unfair dismissal.”

[11] 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)

[12]      The reasons Mr Greenhill provided for his delay in lodgement were principally related

to his ill-health.

[13]      I was persuaded that Mr Greenhill’s 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)

[14]      Mr Greenhill became aware of the end of his relationship with the respondent on 13

October 2015.

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

[15]      Mr Greenhill disputed his dismissal by lodging this application.

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

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

Greenhill’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)

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

[2016] FWC 1092

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

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

[19]      Having considered all of the matters to which my attention is directed by the Act I was

satisfied that there were circumstances which would warrant my granting an exception to the

statutory time limit and on that basis granted the application.

SENIOR DEPUTY PRESIDENT

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