Heath Eblen v Ultratune Roadside T/A AP Fleet Management

[2017] FWC 5714

[2017] FWC 5714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Heath Eblen
v
Ultratune Roadside T/A AP Fleet Management
(C2017/5102)

COMMISSIONER RYAN MELBOURNE, 10 NOVEMBER 2017

Application to deal with contraventions involving dismissal - extension of time granted.

[1] This decision relates to the application made by Mr Heath Eblen pursuant to s.365 of the Fair Work Act 2009 (the Act) being filed outside the 21 day time period stipulated by s.366 of the Act. The following decision, now edited, was issued in transcript on 1 November 2017.

[2] The starting point for any application for an extension of time has to be the relevant provision of the Fair Work Act 2009 (the Act):

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] The case law makes it very clear that the language of section 366(2) is that the Commission must take into account each of the relevant criteria under that section and must weigh them up and then come to a view as to whether or not exceptional circumstances exist.  Even if exceptional circumstances exist the Commission has a discretion as to whether or not to grant an extension of time.

[4] The concept of exceptional circumstances has been considered on many occasions by the Commission and the clear decision of the Commission that deals with this matter is a decision known as Nulty v Blue Star Group Pty Ltd, 1 and the key paragraph is at paragraph 14 and the Full Bench said:

“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.”

[5] That's a decision of the Full Bench and as such the Commission is obliged to follow it, but in following that decision does so on the basis that the Commission has to take into account each of the elements specified in section 366(2).

[6] That notion of what is meant by exceptional circumstances is certainly not a novel matter.  It's a concept which has been around for quite some time, and it's a concept that came out of Federal authorities which dealt with the same issue but prior to section 366 being created in a statutory format, and it goes back essentially to decisions made in England back in the early two thousands.

[7] The primary decision of the courts which gave rise to this notion of what is an exceptional circumstances is a decision of the Federal Court of Australia in the case known as Maan v Minister for Immigration and Citizenship, 2 and at paragraph 49 of that decision the Federal Court dealt with the issue as follows – at paragraph 51 the Court says:

“Although the expression 'exceptional circumstances' is not defined in the Regulations it has been the subject of consideration in numerous cases.  Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:”

[8] Then a quote from that English decision is this:

“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.”

[9] It can be seen that there is a remarkable similarity in the language between the earlier decision and the decision of the Full Bench in Nulty and Blue Star Group .

[10] What is important in this regard is that the Commission doesn't have to look for something which is exceptional; the Commission just has to look at how do the factors which have to be taken into account under section 366(2) add up to, or fail to add up to, constituting an exceptional circumstance.  One of the primary issues that has to be looked at, and it doesn't take precedence over any other but it's very important, is the reason for the delay.

[11] In the circumstances the Commission understands the reasons for delay being advanced by the Applicant, and the reasons for the delay is essentially an impression that the Applicant got from a conversation with the Conciliator at the conciliation of the unfair dismissal application that he had made.  In that matter, U2017/8669, the conciliation took place on 6 September 2017 and as a result of an impression that the Applicant gained from the discussions with the Conciliator the Applicant came to the view that what he wanted to do he could not do under the unfair dismissal process and came to the view that he should be proceeding down the path of a general protections claim.

[12] The Commission has a high degree of suspicion that the assumption drawn by the applicant was incorrect but nevertheless the Commission accepts that that was an assumption that the Applicant did draw from a conversations with the Conciliator during the conciliation process in relation to this unfair dismissal.  It's very clear from the material filed by the Applicant that the Applicant immediately discontinued his unfair dismissal application and very shortly after the conciliation in the unfair dismissal matter that the Applicant filed the general protections application in this matter.  It's not a reason for the delay which is necessarily very compelling but it is a reason for the delay which explains the conduct of the Applicant in pursuing an unfair dismissal claim and withdrawing at the stage of conciliation before a Conciliator of the Fair Work Commission.

[13] Of itself the Commission would not consider that the reasons for delay would be sufficient as to give rise to an exceptional circumstance.  The Commission is obliged to also take into account any action taken by the person to dispute the dismissal, and it is clear in this matter that the Applicant immediately upon being dismissed did dispute his dismissal.  He filed an unfair dismissal application and proceeded down the path of an unfair dismissal application until the day on which the conciliation took place, which was 6 September, and it was only as a result of the conciliation that the Applicant abandoned that course and commenced a course of the action under the general protections provisions.  If nothing else it is clear that the Applicant has from the time of his dismissal been attempting to take appropriate steps to dispute the dismissal.

[14] The Commission also has to take into account prejudice to the employer.  Any delay in filing an application obviously causes some prejudice to the employer and any consideration of an extension of time should be based upon the fact that if the application for an extension of time is not granted then the employer will not be put to the expense of defending the claim.  A grant of an extension of time to an applicant automatically will have some level of prejudice to the employer, and the Commission certainly takes that into account.  However, given the closeness in time between the actual date of dismissal and the date of a possible hearing this is not an exercise where significant or real prejudice would flow to the respondent on the basis of a long time lapse between events which took place at the dismissal and the present.  The Respondent also has not been in a position of having to formally answer directions from the Commission in relation to an unfair dismissal claim.  The Respondent has filed material on a form F3 which it did in on 22 August in relation to an application that was lodged on 11 August.  There's sufficient temporal connection between the present matter and the unfair dismissal matter that the Commission concludes that the employer would not suffer any significant prejudice by a grant of an extension of time, but the Commission does accept that prejudice will flow in any event to the employer where the employer is required to address an application when it has been filed out of time.

[15] The next issue the Commission must deal with is the merits of the application.  The practical difficulty in dealing with the merits of an application was succinctly dealt with by a Full Bench decision of the Commission in the matter of Kyvelos v Champion Socks Pty Ltd, 3 the decision given on 10 November 2000. It related to proceedings under predecessor legislation to the Fair Work Act, but the principles described by that Full Bench in relation to considering merits has been adopted by the Fair Work Commission in relation to applications under section 366.

[16] What the Full Bench said at paragraph 14 of its decision is as follows:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.  Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to section 170CE(8).”

[17] The Commission interposes here and notes that's the same language as section 366(2). And then it continues:

“In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.  There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement.  If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case.  In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance.  As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party.  But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.”

[18] Then at paragraph 15 the Full Bench says:

“There is a further reason why the Commissioner's finding on the merits should not be allowed to stand.  If the finding is left undisturbed it would serve as an encouragement to other applicants for late acceptance pursuant to section 170CE(8) to put the whole of their evidentiary case and seek to cross-examine the respondent's witnesses to reduce the possibility of an adverse finding on the merits.  This would lead to unjustifiable delay and expense.”

[19] As can be seen, the approach adopted by the Full Bench in Kyvelos v Champion Socks is to make clear that at a hearing of an application for an extension of time the Commission should not embark upon a detailed examination of the evidence of the applicant or of the evidence of the respondent, and it is appropriate for the Commission to come to a view based upon simply the submissions put by the parties and the assertions, even though they are untested assertions.

[20] Normally the approach adopted in many decisions of the Commission on a grant of an extension of time is to consider and treat the issue of the merits of the application as a neutral factor.  In other words it neither weighs in favour of a grant of an extension of time nor does it weigh in favour of refusing an extension of time.  There is another aspect to a consideration of the issues relating to an extension of time.

[21] In a Full Court decision in the Federal Court in the matter of Haining v The Australian Industrial Relations Commission, 4 as it then was, Wilcox and Marshall JJ said the following:

“At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time.  The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well.  The acceptability of the applicant's explanation for delay cannot be divorced from the effect of that delay on the respondent or other people.  If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

[22] So in the circumstances of that case that was not a decision dealing with section 366, but the principles that have been espoused in that decision and in other Federal Court decisions are useful guides to interpreting and applying section 366.

[23] In the present matter I take from the decision in Haining the following sentence:

“If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

[24] Given that the Commission is not in the position of having heard the evidentiary case of either party, the view as to whether or not an applicant has a meritorious case is going to be one of perception, and such is clear from the decision in Maan v The Minister of Immigration and Citizenship.

[25] In the present matter the last criterion in section 366, fairness as between the person and other persons in a like position, is simply not a relevant factor because there is no one else in the applicant's position.  That factor would require the Commission to take into account whether people had been dismissed in similar circumstances or dismissed at the same time and for the same sorts of reasons.  In the present matter section 366(2)(e) is not a relevant matter.

[26] The Commission now must weigh up each of the criteria in sections 366(2)(a), (b), (c) and (d) to establish in my own mind whether or not there is an exceptional circumstance.  In the present matter the factors identified, and as I've already discussed, under (a) the reason for the delay, and (b) any action taken by the person to dispute the dismissal are factors which weigh in favour of a finding that there are exceptional circumstances.  The factor in (c), prejudice the employer in the present circumstance would weigh against a grant of an extension of time, but only in a minor way.

[27] The merits of the application:  The Commission does consider that the Applicant has, at face value, a meritorious claim.  Whether or not it can or will succeed is a different issue.  This is a perception and a finding the Commission reaches based upon simply having regard to the material that's been filed by both parties.  The Commission is not certain that it would be the same as a highly meritorious claim as discussed in Haining v the Commission but the Commission thinks that it's more than an arguable case, and it's a factor which the Commission takes into account as weighing in favour of a finding that there is an exceptional circumstance.

[28] In all of the circumstances of this matter adopting the approach to what constitutes an exceptional circumstance the Commission is satisfied that the combination of factors that have been discussed under section 366(2) constitute an exceptional circumstance.  They're unusual.  They're out of the ordinary, and that is sufficient.

[29] Having made a finding that exceptional circumstances exist, the Commission still has to determine whether or not the Commission should exercise its discretion to grant an extension of time.  Having regard to the totality of the matters of this case and including the conduct of the Applicant in pursuing his unfair dismissal application, the Commission is satisfied that it should exercise the discretion and grant an extension of time. 

[30] The Commission grants Mr Eblen, an extension of time to file an application outside of the timeframe specified in section 366(1)(a) which was 21 days, and the Commission grants the Applicant an extension until the date upon which he did file his application for a general protections remedy.  On that basis the application is now within time and the application can now proceed to be dealt with by the Commission.

COMMISSIONER

Appearances:

H. Eblen on his own behalf

I. Lockley on behalf of Ultratune Roadside T/A AP Fleet Management

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13].

 2 [2009] FCAFC 150.

 3   Print T2421.

 4 [1998] FCA 1168.

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