Gregg Wright v Bearcat Tyres Pty Ltd

[2014] FWC 8528

[2014] FWC 8528

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregg Wright
v
Bearcat Tyres Pty Ltd
(U2014/12130)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 NOVEMBER 2014

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 Wright and the respondent ended on 21 July 2014. Mr Wright lodged his application at the Fair Work Commission on 27 August 2014. Mr Wright's application was lodged 16 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Wright. In his application he provided an explanation for his late lodgement, however I will not set that out here as he has asked that it remain confidential.

[4] I wrote to Mr Wright on 11 September 2014 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 Wright attended a hearing and then a conciliation with Commissioner Riordan on 3 October 2014. I decided to obtain medical reports in relation to the condition from which Mr Wright was alleged to suffer following that listing. The reports of Ms Wassell, and my correspondence regarding those reports, are set out below.

Email from Ms Wassell dated 15 October 2014:

“I am a Registered Psychologist emailing on behalf of Mr Gregg Wright concerning his current application to Fair Work Australia for an extension in time to complete the paperwork required for his current case. Below I have outlined Mr Wright’s current mental health status.

Mr Wright first presented for psychological therapy on 12.04.2014, and has since attended ten sessions with myself. During assessment he reported experiencing significant mental health issues since 2009. Mr Wright currently meets DSM-V diagnostic criteria for Major Depressive Disorder, endorsing symptoms consistent with depressed mood, anhedonia, ruminative thinking, significant recent weight loss (6kgs), sleeping disturbances, loss of energy and poor self-activation, and reduced cognitive capacity (difficulty thinking clearly, concentrating, and making decisions). Mr Wright described a number of Major Depressive Episodes in the past year, most notably following the loss of his best friend in late 2013. The severity of his depression has recently been exacerbated by having to move houses (and ongoing complications with his new residence), the medical needs of his pet, and changes to his position of employment. Mr Wright describes experiencing ongoing distress and impairment in functioning due to his depressive symptoms.”

Email from myself dated 24 October 2014:

“Dear Ms Wassell,

You have provided me with a statement dated 15 October 2014.

I am required to consider whether or not an extension of time should be granted to Mr Wright.  His application was required to be lodged 21 days after his dismissal on 21 July 2014.  It was lodged 16 days outside this time limit. 

Your statement does not assist me in understanding whether or not Mr Wright was capable of lodging his application in the 21 days following 21 July 2014.  Could you please address that question?”

Email from Ms Wassell dated 29 October 2014:

“I saw Mr Wright for two sessions during the period of time in question (July 26^th and August 9^th), and I can only comment on Mr Wright’s functioning and symptoms of mental illness reported during these sessions. During these sessions, Mr Wright discussed his approach to finding a new position of employment, increasing his exercise to help manage low mood, and his need to look for a new house. Mr Wright reported experiencing high levels of stress and moderate levels of depression following the redundancy (symptoms described in last email). Whilst it is likely that Mr Wright’s symptoms of stress and depression have affected his cognitive capacity, I am unable to accurately infer whether or not Mr Wright was capable or incapable of lodging the specific application outside of the two sessions that I saw him during this period.”

[5] I issued an Order refusing Mr Wright's application for an extension of time and dismissed his application on 13 November 2014.

[6] 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:

(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.

[7] 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.’

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.” [Endnotes not reproduced]

[8] 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.

[9] 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)

[10] The reasons Mr Wright provided for his delay in lodgement were, psychological stress and trauma arising from the termination of his employment and a pre-existing psychological condition arising out of personal circumstances including the loss of a friend, having to move residence, and the medical needs of his pet.

[11] Ms Wassell was unable to accurately infer that Mr Wright was incapable of lodging his application for an unfair dismissal remedy.

[12] While sympathetic to Mr Wright's circumstances I was not persuaded that Mr Wright's difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)

[13] Mr Wright became aware of the end of his relationship with the respondent on 21 July 2014.

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

[14] Mr Wright disputed his dismissal by lodging this application.

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

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Wright'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)

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

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

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

[18] 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 Wright's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558319>