Ifeanyi Egwutuoha v University of Western Sydney

[2014] FWC 5033

[2014] FWC 5033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ifeanyi Egwutuoha
v
University of Western Sydney
(U2014/6827)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 30 JULY 2014

Application for relief from unfair dismissal - Extension of time.

[1] Mr Egwutuoha commenced employment with the University of Western Sydney (the University) on 20 May 2013. His employment was terminated on 20 February 2014 after one six-month period of probationary employment followed by a three month extension of probationary employment. He seeks a remedy pursuant to s394 of the Fair Work Act 2009 (the Act). He also seeks an extension of time for lodgement of that application.

[2] In relation to the termination of his employment Mr Egwutuoha alleges harsh, unjust or unreasonable grounds arising out of bullying, harassment and discrimination.

[3] On 24 February 2014 Mr Egwutuoha lodged an application with the NSW Anti-Discrimination Board, pursuant to the Anti- Discrimination Act 1977, relying on the same bullying, harassment and discrimination which he has identified in this application. It is not disputed that, in the proceedings before the NSW Anti-Discrimination Board, Mr Egwutuoha identified identical remedies. At the time of the hearing of Mr Egwutuoha’s application for an extension of time for lodgement, before me on 4 July 2014, these proceedings were still current.

[4] I am satisfied that these proceedings would, even where an extension of time has been granted, be a bar to the conduct of this application by the operation of s725 the Act.

[5] I will however, deal with the merits of Mr Egwutuoha's application for an extension of time. His application pursuant to s394 of the Act was filed more than six weeks outside the statutory time limit.

[6] The relevant legislative framework for the exercise of the 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 1 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 have considered the reasons for delay in lodgement provided by Mr Egwutuoha. Mr Egwutuoha relies in part on medical unfitness to explain his late lodgement. Whilst Mr Egwutuoha was certified unfit by medical certificates relating to a stress-related incapacity, this capacity did not prevent him lodging a detailed application in the NSW Anti-Discrimination Board. He has demonstrated by his own conduct a considerable capacity to prepare and lodge documents despite this medical condition. I am not satisfied that Mr Egwutuoha’s medical condition provides an explanation amounting to exceptional circumstances sufficient to warrant an exception to the statutory time limit.

[10] Mr Egwutuoha also relies on the fact that he was waiting for the outcome of an internal complaint. The University officer dealing with Mr Egwutuoha’s internal grievance was clear in her correspondence to him, in that any outcome arising from the internal complaint could not interfere with the processes or alter the outcome of the industrial process that led to the termination of his employment. I am not satisfied that Mr Egwutuoha’s alleged misguided understanding of the affect of his internal complaint amounts to exceptional circumstances sufficient to warrant an exception to the statutory time limit.

[11] Mr Egwutuoha also relied on his ignorance of the law regarding available remedies pursuant to the Act. I am not persuaded that his ignorance, particularly considering his education background, amounts to exceptional circumstances sufficient to warrant an exception to the statutory time limit.

[12] I have considered the date on which Mr Egwutuoha became aware of his dismissal from employment. I am satisfied that there was no delay in Mr Egwutuoha becoming aware of the date of his dismissal or the date of its effect.

[13] I have considered the action taken by Mr Egwutuoha to dispute his dismissal. Mr Egwutuoha lodged an application in the NSW Anti-Discrimination Board. He considered that application, prepared it, lodged it and pursued the Board for acknowledgement of its lodgement. Prior to termination of his employment he also lodged an internal complaint. I have considered both of those events.

[14] The University does not allege any particular prejudice brought about by this application and I do not find that there is any.

[15] It is not possible to form any final view regarding the merits of Mr Egwutuoha's substantive application. I cannot be satisfied that it is without merit.

[16] There is no issue of fairness arising between Mr Egwutuoha and any other person.

[17] Having regard to those matters to which my attention is directed by the Act, and having considered the submissions of Mr Egwutuoha, I am not persuaded that any of those matters or submissions alone, or considered together, amount to exceptional circumstances sufficient to warrant an exception to the statutory time limit.

[18] Mr Egwutuoha’s application for an extension of time for the lodgement of his application pursuant to s394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

 1   [2011] FWAFB 975

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