Hayden Thom v Cavco Earthmoving Pty Ltd

[2015] FWC 1960

[2015] FWC 1960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayden Thom
v
Cavco Earthmoving Pty Ltd
(U2015/3780)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 MARCH 2015

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

[1] Mr Thom 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 Cavco Earthmoving Pty Ltd (Cavco). My decision in this matter is based on information referenced and provided to me at a telephone conference convened on 25 March 2015.

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

“I was informed that the company Cavco Earthmoving was to down size and that my position was no longer required. At that time on 2/2/2015 I had no reason to question the decision and thought this genuinely was the case.

Approximately 2 weeks after my termination I was informed from a staff member still employed by the company, the directors had possibly been looking for a replacement for me. I was unsure what role the new staff member was going to hold I did not lodge an application until the new role was filled.

On Tuesday the 3rd March a new staff member started in the position previously held by myself and until this point I had no evidence that this was true, so therefore did not wish to lodge a false complaint.” 1

[3] On 12 March 2015 my Associate corresponded with both Mr Thom and Cavco and advised that the extension of time issue would be considered through a telephone conference on 25 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Thom was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 18 March 2015.

[4] Additional information was received from Mr Thom on 16 March 2015. This information provided further details about Mr Thom’s version of the events surrounding his dismissal. In terms of the delay in lodging the application Mr Thom confirmed that he obtained advice from the Fair Work Ombudsman (FWO) on 9 February 2015 and that he was made aware that Cavco was considering the engagement of a replacement employee on 20 February 2015. Mr Thom was aware that replacement employee commenced at Cavco on 3 March 2015. He obtained legal advice on 6 March 2015 and lodged the application that day.

[5] The Employer’s Response to the application confirmed the accurate name of the business and I have used the discretion available to me to amend the application accordingly. That response confirmed Cavco's objection to an extension of time and its objection to the application on a range of other jurisdictional grounds. These included the Cavco position that Mr Thom was not dismissed or, in the alternative, any dismissal was a case of genuine redundancy. Further, Cavco asserted that Mr Thom was in receipt of a salary which was above the high income threshold so that he was not a person protected from unfair dismissal.

[6] Mr Thom participated in the telephone conference. Mr Wills, of counsel represented Cavco pursuant to an unopposed grant of permission made under s.596(2)(a) of the FW Act. Mr L Cavallaro and Mr J Cavallaro from Cavco also participated in this conference. Mr Thom was given the opportunity to provide further information at the conference. That information particularly addressed the following issues.

[7] Mr Thom advised that his initial contact with the FWO was directed at a possible workers compensation claim. He elected not to pursue such a claim.

[8] As of 20 February 2015 he was advised by another Cavco employee that a replacement employee in his position was being engaged by Cavco. He then telephoned the FWC but did not pursue this call when he heard the recorded message that this advisory service could not provide legal advice. Instead he referred to the FWC website. While he then became aware of the 21 day time limit he advised that the website did not provide any guidance to his situation where he was uncertain about whether he was actually being replaced such that the termination of his employment was not a redundancy situation. Mr Thom advised that he waited until he was told that a replacement employee had actually started with Cavco on 3 March before initiating legal advice.

[9] In terms of the Cavco assertion that he was paid above the high income threshold, Mr Thom agrees that his base salary was $125,000 per annum and that he had access to a fully maintained car and a mobile telephone. However, he disputes the extent to which these were significantly used for private purposes as distinct from business use.

[10] 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.

[11] 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.”

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

[13] Mr Thom's reasons for the delay were that he only had clear information that the termination of his employment was not due to a redundancy on 3 March 2015. Whilst I note that the parties are in dispute about whether Mr Thom’s position has been replaced, I am unable to agree with his assertion that the FWC website did not provide clear advice about what he should do given that he was unclear about his redundancy status. The website contains express recommendations relative to the 21 day time limit. Amongst these is the following advice:

“Applications for unfair dismissal must be made to the Fair Work Commission within 21 days of the dismissal taking effect. You can make your application by email, fax, post, electronic lodgment or by telephone.

The Fair Work Commission will only allow late applications if it is satisfied that there were exceptional circumstances that led to it being lodged out of time.

If you are nearing the 21 day application time frame and are having difficulties lodging your application in time, please call the Commission on 1300 799 675. Note that the Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application. 3

[14] Mr Thom’s decision to wait for further advice about the commencement of the person he considered to be his replacement rather than either lodge an application, or seek further advice from the FWC or a lawyer, reflects a choice made by him which I am unable to reconcile with the explicit provisions of the FW Act. In this respect I do not consider that Mr Thom's circumstances are of the nature of exceptional circumstances. It is clear from Mr Thom'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 Thom 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.

[15] If Cavco is able to establish that Mr Thom was above the high income threshold, he simply cannot pursue this application. Similarly, if he was not dismissed or his dismissal met the requirements of a genuine redundancy, he cannot pursue the application. The information before me does not permit a definitive conclusion about any of the jurisdictional objections identified by Cavco. Accordingly, I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

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

[17] Having considered the entirety of the circumstances, I have concluded, on balance, that the material before me does not establish that Mr Thom'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 (PR562279) giving effect to this decision will be issued.

Appearances (by telephone):

H Thom on his own behalf.

R Wills counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 25.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

 3   FWC Website - Unfair Dismissal - Am I eligible to apply - Checklist

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