Horacio Gomes Malho v Craig Mostyn Group Food and Agribusiness T/A Craig Mostyn Group

[2017] FWC 3003

[2017] FWC 3003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Horacio Gomes Malho
v
Craig Mostyn Group Food & Agribusiness T/A Craig Mostyn Group
(U2017/2561)

COMMISSIONER PLATT ADELAIDE, 1 JUNE 2017

Application for an unfair dismissal remedy – extension of time refused.

[1] Mr Horacio Malho has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Craig Mostyn Group Food & Agribusiness T/A Craig Mostyn Group (CMG) which took effect on 6 January 2017.

[2] This application was lodged on 8 March 2017.

[3] Mr Malho’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“- Meeting with Ron Penn the general manager at Linley Valley Park.

- Please find attached a letter re delay

- Also when I attended meeting with Ron Penn he asked me to contact him after I took the cask of my arm that they may of given my job back.”

[4] Attached to the application was a commendation letter dated 1 May 2014, a warning dated 29 November 2016, the dismissal letter dated 5 January 2017 and a letter from Dr Gleave dated 14 February 2017 concerning Mr Malho’s fracturing his wrist.

[5] On 20 March 2017, CMG filed a F3 Employer Response form and a F4 Objection to Application for Unfair Dismissal Remedy form and raised a jurisdictional objection on the basis that the application was lodged out of time.

[6] A conciliation conference was conducted on 10 April 2017 but did not resolve the matter.

[7] The jurisdictional issue was then referred to me for determination.

[8] On 28 April 2017, my Associate corresponded with Mr Malho and CMG and advised that the extension of time issue would be considered at a telephone conference on 29 May 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Malho was directed to provide a statement concerning the extension of time and any documents to be relied upon by 12 May 2017. CMG was invited to file any material in reply by 19 May 2017.
[9] Mr Malho’s relevant submissions are summarised as follows;

• He received his dismissal letter on 6 January 2017.



• A couple of days later, he rang CMG and sought an appointment with Mr Penn to discuss the dismissal.



• Mr Penn was on leave and an appointment was made about a week after the initial phone call, this appointment was delayed for approximately a week.



• Mr Malho met with Mr Penn, Mr Joubert and Ms O’Reilly and asked why he was terminated and that he thought it was unfair. Mr Penn told Mr Malho to contact him after the plaster cast on his arm was removed and the company doctor had cleared him for work.

[10] CMG did not file a statement or submission.

[11] A hearing was conducted by way of telephone conference on 29 May 2017. A sound file record of the telephone conference was kept. Mr Malho represented himself together with Ms Michelle Malho who acted as a support person and interpreted for her father as required. Mr Joubert and Ms O’Reilly represented CMG.

[12] Mr Malho, with the assistance of Ms Malho, reiterated the position contained in his submission. Unfortunately Mr Malho was unable to be more precise with the dates and Mr Joubert could not assist further other than his recollection that the meeting with Mr Penn occurred in January 2017 after Australia day.

[13] Mr Malho stated that Mr Penn did not guarantee him a role once his arm was healed and said that the application was lodged before his plaster cast was removed.

[14] Mr Malho stated that he lodged the application because Mr Penn did not guarantee him a position. Mr Malho explained the delay between the meeting with Mr Penn in January 2017 and lodging the application on 8 March 2017 as his lack of awareness of this jurisdiction and in particular the 21 day time limit. Mr Malho believed his plaster cast was removed after he lodged his application.

[15] At the telephone conference, CMG reiterated the material contained in their forms F3 and F4 and contended that there were no exceptional circumstances that supported the extension of time application.

[16] Just prior to the conclusion of the hearing, Ms Malho asked for additional time to confirm the dates of the meeting and when the plaster cast was removed. The Commission provided Mr Malho an opportunity to put further submissions in writing on that day and for CMG to respond.

[17] Mr Malho subsequently advised that his plaster cast was removed on 27 February 2017.

[18] CMG subsequently advised that the meeting with Mr Penn occurred at 2:00pm on Thursday 2 February 2017 and that there was no further contact after that date until the Commission conducted the conciliation conference.

[19] 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.”

[20] This unfair dismissal application by Mr Malho was made 40 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[21] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[22] I find that the application was made 40 days beyond the time limit permitted.

[23] It appears that the applicant took active steps to challenge the dismissal soon after and met with Mr Penn on 2 February 2017. The delay in the conduct of this meeting was due to Mr Penn’s availability. I accept Mr Malho’s explanation for this part of the delay.

[24] However, Mr Malho was not able to satisfactorily explain the reason why he waited over a month after the meeting with Mr Penn before lodging his application.

[25] At the conference, Mr Malho stated he lodged the application because Mr Penn did not guarantee him employment after his arm had healed.

[26] I accept that Mr Malho was not aware of the 21 day limit but this of itself is not an exceptional circumstance. 2

[27] Mr Malho has not satisfactorily explained why he waited more than one month after that meeting to lodge his application.

[28] The applicant needs to provide a credible explanation for the entire period of the delay, 3 but has not done so.

[29] There is no submission that the granting of an extension of time represents prejudice to CMG.

[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[31] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Conclusion

[32] For the reasons I have set out above, I am not satisfied that Mr Malho circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 4 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Malho the Applicant.

Mr Joubert on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

May 29.

1 [2011] FWAFB 975

 2   Rose v BMD Constructions Pty Ltd[2011] FWA 673

 3   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 4   PR593397

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<Price code C, PR593396>