Gregary Anderson v Irymple Canvas Pty Ltd

[2015] FWC 115

[2015] FWC 115

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregary Anderson
v
Irymple Canvas Pty Ltd
(U2014/15501)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 JANUARY 2015

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

[1] Mr Anderson 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 Irymple Canvas Pty Ltd (Irymple). At a telephone conference convened on 8 January 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 Anderson’s application was lodged on 27 November 2014. In that application Mr Anderson advised his employment was terminated with effect from 27 October 2014. Mr Anderson asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“After receiving notice of my dismissal, I telephoned Jobwatch Victoria. I was told to go onto the Fair Work Ombudsman’s website. I was told to download a “Workplace Complaint Form”. I downloaded a “Workplace Complaint Form” and completed it. I sent the form to the Adelaide Workplace Ombudsman. I was not told until the 26 November 20124 by the office of the Workplace Ombudsman that I should complete the form which i am completing now.” 1

[3] I note that Mr Anderson’s application was lodged, on his behalf by Mr Radbone, of counsel. Mr Radbone provided advice that confirmed that he was not acting on behalf of Mr Anderson.

[4] On 2 December 2014 my Associate corresponded with both Mr Anderson and Irymple and advised that the extension of time issue would be considered through a telephone conference on 8 January 2015. Substantial information about the extension of time issue was provided to the parties. Mr Anderson was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 22 December 2014. He was advised that:

“You bear the responsibility for demonstrating that an extension of time should be granted, or, in the alternative, is not required. If you fail to comply with these instructions, the Senior Deputy President may determine the matter on the material before him.” 2

[5] No further information was received from Mr Anderson.

[6] The Employer’s Response to the application recorded its objection to an extension of time and that it was a small business which employed five persons at the time of the termination of Mr Anderson’s employment.

[7] Mr Anderson did not participate in the telephone conference on 8 January 2015. Ms Benson from Irymple also participated in this conference. My conclusions about the extension of time issue were reached on the basis 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

....

(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 some 10 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 3 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] Mr Anderson’s stated reason for the delay was that he was given inaccurate advice about how to lodge the application by a job provider. At some point it is clear that Mr Anderson sought advice from Mr Radbone about lodging this application. I am not satisfied that the information before me establishes that the delay was the consequence of representative error as distinct from a failure, on the part of Mr Anderson, to establish his rights to pursue this application and the time within which the application had to be made. In terms of the reason for the delay, I do not consider that there is anything of the nature of an exceptional circumstance. It is clear from Mr Anderson’s application that he was aware of the termination of his employment on 27 October 2014 and that this termination took effect from that date. I have noted the advice provided by Irymple to the effect that Mr Anderson has pursued an underpayment claim through the Fair Work Ombudsman but I am not satisfied that, apart from the late lodgement of this application, he 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 Irymple but this, of itself, does not provide a basis for an extension of time.

[11] In terms of the merits of the application, I have noted the information provided to me in the Irymple response to the application. If that information was established in the evidence, I consider that it is likely that the requirements of the Small Business Fair Dismissal Code would be met so as to require that the application be dismissed. 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.

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

[13] Accordingly I have concluded that the material before me does not establish that Mr Anderson’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 (PR559768) giving effect to this decision will be issued.

Appearances (by telephone):

A Benson for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 8.

 1   Form F2, para 1.4

 2   FWC correspondence dated 13 November 2014, para 8.

 3   [2011] FWAFB 975

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<Price code C, PR559767>