Jake Williams v KM & BA Broome T/A Integral Freight Services

[2016] FWC 1386

[2016] FWC 1386

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jake Williams
v
KM & BA Broome T/A Integral Freight Services
(U2016/4516)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 4 MARCH 2016

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

[1] Mr Williams 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 BA and KM Broome T/A Integral Freight Services Eyre Peninsula (Integral Freight). At a telephone conference convened on 4 March 2016 I advised that I had concluded, on the material before me, that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Williams’ application was lodged on 11 February 2016. In that application Mr Williams advised that the termination of his employment took effect on 1 October 2015. In his application, Mr Williams provided the following explanation for his late lodgement of the application:

“Because of personal issues – being in hospital and due to the threats I heard from the employer when another staff member was going to do it.

I have now decided I should stand for myself against the employer who thinks laws don’t apply to him.” 1

[3] The Employer’s Response to the application confirmed that Mr Williams was advised of the termination of his employment on 1 October 2015, which took effect on 28 September 2015, and asserted that this employment termination was consistent with the Small Business Fair Dismissal Code and that, in any event, Mr Williams had not completed the minimum employment period. Integral Freight opposed any extension of time.

[4] On 18 February 2016 my Associate corresponded with both Mr Williams and Integral Freight and advised that the extension of time issue would be considered through a telephone conference on 4 March 2016. Substantial information about the extension of time issue was provided to the parties. Mr Williams was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 26 February 2016.

[5] Further information was received from Mr Williams on 1 March 2016 when he provided advice, by email, in the following terms:

“The reason I am writing to you today is in regards to the Extension of time on the matter : U2016/4516.

The reason I had not lodged the unfair dismissal claim 21 days after the termination of my employment was that I was unsure what I should and could do about it.

I had a fair bit of personal stuff going on that had nothing to do with my employment with Integral Freight Services yet that is the reason that I was dismissed.

When my employment was terminated By Integral Freight Services, I had received one phone call from a proprietor (Kerrie Broome) stating that my employment was terminated and that I was no longer aloud on their site. Not at any given stage was I given a reason but I was also told that her Husband (Brian Broome) would call and give me the run down. I have until this day not spoken to her husband.

Another reason I hadn't lodged the application prior to the 11th of February 2016 is because I witnessed another employee be dismissed in the middle of 2015 due to a workplace incident and the threats that were spoken about when Brian had dismissed the fellow employee. I quote some of the comments about the 2015 incident were "he wouldn't be silly enough to take me for unfair dismissal as I pay all my employee's above the award wage and the odds are in my favour anyway so good luck to him"

I look forward to speaking to you on Friday and hopefully there is a positive outcome.”

[6] It is also appropriate that I note the advice provided in the Employer’s Response relative to the termination of Mr Williams employment. I have set this out below:

“(1) On Monday 28/09/2015 Brian Broome received a call at approx. 7.00am from an employee commencing his workday claiming he could not enter the depot at 277 Carlton Parade, Pt Augusta as the gates were locked. Jake Williams was required to be on duty at this time. We had not heard from Jake Williams as to why he was not present.

(2) Upon receiving a phone call from Jake Williams' fathers partner that same morning, we were advised Jake has assaulted his father the night prior, had been arrested and his bail application had been refused. Brian was told it was likely Jake's court hearing had been scheduled for Thursday 01/10/2015.

(3) Jakes father was and remains a current fulltime employee of Integral Freight Services as a Courier Driver. The assault caused interruption and delays to the daily courier service over consecutive days due to injuries sustained by Jake's father and the stress caused by the assault.

(4) Kerrie Broome contacted the Police Station to enquire how to communicate with Jake in reference to his position in respect to the situation at hand and was told she was unable to speak with him directly whilst he was being held in custody.

(5) We were advised a restraining order had been taken out by his father against him which we understood meant Jake was not allowed to be anywhere within 200m proximity of him at any time.

(6) Integral Freight Services had an obligation to ensure his father felt safe in his working environment, as well as all other staff and customers, and our contracts needed to continue to be met. Jake was employed as a Depot Manager overseeing staff and day to day running. Despite the assault occurring outside of the workplace, his actions directly jeopardised our ability to ensure the safety, health and wellbeing of his father in his position with our Company.

(7) On the night of 29/09/2015, 2 x Pt Augusta Police Officers came to our Depot at 277 Carlton Parade, Pt Augusta and searched Jakes Toyota 4WD ute that was on site as it was alleged it may contain some stolen items, potentially freight we had received from one of our carriers.

(8) On 30/09/2015 Kerrie met with Detective Callan Everlyn of Pt Augusta Police at our Pt Augusta depot, 277 Carlton Parade, where she was informed that on 17/09/2015 Jake Williams had been arrested whilst on duty within our workplace for sexual offences. It was noted these allegated offences had not occurred at our workplace, nor were they related to work colleagues. It was later brought to our attention that the Police had seized Jake Williams' phone whilst he was on duty in relation to this alleged sexual offence however Jake contacted Kerrie and advised he had had his phone stolen out of his vehicle during the day whilst parked down the main street of Pt Augusta, and hence told her he had to get a new phone and number.
Detective Evelyn went on to advise Kerrie Jake had since been arrested for assault charges on 27/09/2015 and had been remanded in custody with a bail review hearing likely scheduled for Thursday 1/10/2015.

(9) Due to the nature of our contracts in respect to high security freight items, ie drugs, medical supplies, IPhones, tablets, I.T. equipment etc, it is imperative our staff are trustworthy, honest and reliable. Jakes behaviour breached this completely.

(10) On approx. 22/09/2015, Jake had his driver's licence taken off him. We understood he had been re-granted his driver's licence on a special condition that it was to be used for work purposes only. In fact, Integral Freight Services provided a letter to assist him attaining his licence after having it disqualified sometime earlier. Holding a drivers licence in the role Jake Williams was employed in upon being appointed 'permanent' employment, was a credential requirement of his employment with us. (*Please refer to copy of Letter attached.) Jake was pulled over during work hours while carrying out courier deliveries where he then proceeded to contact a fellow staff member to drive him around for the remainder of the day, unbeknown to us. Jake's drivers licence had not been reinstated at the time of his dismissal.

(11) On 01/10/2015 Jake was granted bail with home detention conditions. He phoned Brian's mobile and spoke with Kerrie advising her 'he was out'. Kerrie informed him that due to the circumstances he was not welcome back at work and that he was not to enter the workplace unless there was a time specifically arranged with Brian. Kerrie also informed him that due to the severity of his actions, and the profound affect they had on the workplace, his employment had been terminated, effective immediately.”

[7] Mr Williams participated in the telephone conference. Ms Broome, from Integral Freight also participated in this conference.

[8] 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.

[9] 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.”

[10] On the information before me I have concluded that Mr Williams’ application was made 115 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.”

[11] Mr Williams’ reasons for the delay fundamentally go to his advice that he was unsure of what action he could take. Mr Williams’ lack of awareness of the capacity to make an application of this nature cannot be taken as indicative of an acceptable reason for the delay or an exceptional circumstance. Additionally, Mr Williams asserted that he had “personal stuff” going on in his life. In this respect he referred to criminal proceedings proceeding through the Courts. He did not detail how these matters contributed to the delay in the lodgement of the application. Thirdly, Mr Williams asserted that he saw another employee of Integral Freight dismissed in 2015 and was concerned at the Integral Freight approach to this employee. I am not satisfied that Mr Williams has established that any of the reasons for the delay represent circumstances which should be regarded as acceptable or exceptional for the purposes of an extension of time.

[12] The termination of Mr Williams’ employment took effect on 28 September 2015 but I have noted that Mr Williams was advised of that dismissal, by telephone, on 1 October 2015 because Integral Freight was unable to talk to him before that date because he was in jail. This three day delay does not explain the very substantial delay in the lodgement of this application.

[13] I am not satisfied that Mr Williams took any other action, apart from the very late lodgement of this application, to dispute the termination of his employment. I note that Mr Williams has confirmed that he foreshadowed this application to Integral Freight in October 2015 but then did not lodge the application for a further four months.

[14] I consider that an extension of time of this magnitude would most likely prejudice Integral Freight but have not based my conclusion in this matter on that consideration.

[15] The material before me relative to the merits of the application indicates that Mr Williams is highly unlikely to be successful in pursuing the application. That information appears to indicate that the Small Business Fair Dismissal Code had application and the requirements of that code was satisfied on the basis of Mr Williams’ behaviour toward another employee (his father), the circumstances of his imprisonment, the loss of his driver’s license (which he did report) and the extent to which he utilised another employee to undertake his driving duties. Further, and in the event that the requirements of that code were not met, I think it highly unlikely that Mr Williams would be successful in pursuing an application based on the criteria specified in s.387 of the FW Act. Accordingly, the merits of the application do not support an extension of time.

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

[17] Accordingly, I have concluded that the material before me does not establish that Mr Williams’ circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR577622) giving effect to this decision will be issued.

Appearances (by telephone):

J Williams on his own behalf.

K Broome for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

March 4.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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