James Wolfgang v Boeing Defense Australia

[2016] FWC 3807

[2016] FWC 3807

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Wolfgang
v
Boeing Defense Australia
(U2016/2113)

SENIOR DEPUTY PRESIDENT DRAKE MELBOURNE, 15 JUNE 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Wolfgang and the respondent ended on 14 April 2016. Mr Wolfgang lodged his application at the Fair Work Commission on 6 May 2016. Mr Wolfgang’s application was lodged one day outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Wolfgang. I wrote to him on 12 May 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Wolfgang provided a statement on 24 May 2016. Mr Wolfgang’s statement is set out below:

“I am writing to you to apply for a 24 hour extension of time for my Unfair Dismissal application.
My reason being, when I originally submitted my application on 05 May 2016 on the Fair Work Commission (FWC) website my application failed to submit properly, unbeknown to myself at the time of submission.

On the website it said to upload my F2 form application along with any supporting documentation. I proceeded to upload nine (9) supporting documentation along with my F2 application form. All documents had appeared to attach to the upload box and within the size capacity, it wasn’t until the next day I received a call from FWC advising me that my F2 application form had failed to come through. I was extremely surprised to hear this as I had seen all my documents appear in the upload box before submitting, I even inserted comments to the effect “Please find attached my F2 application and nine (9) supporting documents”… as to my knowledge all documents were attached and there was no error with the upload. After the phone call from FWC I rushed home to re-submit the F2 application to the email address provided by the FWC lady on the phone call.

Please consider my reason for delay as a system error.

I do apologise for submitting my application on the last day of the 21 day limit, but as you can see from my application I have taken a lot of time to compile my case and wanted to make sure I covered off on all the facts and provided all relevant evidence. I do feel I was unfairly dismissed and would really appreciate your concurrence for an extension of time for my application.

Thank you for your time and consideration. I look forward to hearing from you.

Kind regards,
James Wolfgang”

[4] I considered that statement.

[5] I wrote to the respondent on 1 June 2016 as follows:

“Dear Ms Brunning,

The application lodged by Mr Wolfgang was lodged one day outside the statutory time limit. A copy of his explanation for delay is attached for your consideration. In the circumstances I am considering extending the time for lodgement by one day.

If the respondent is opposed to my extending time please supply a submission in opposition within seven days. In any event, could you please advise whether the respondent is content for me to deal with the application on the papers before me.”

[6] The respondent’s response to my correspondence is set out below:

“Dear Associate to SDP Drake

I act for the Respondent, Boeing Defence Australia Limited and Boeing is content for the matter to be dealt with on the papers.

Boeing opposes the out of time application being granted to Mr Wolfgang because:

● FWC’s power is only to extent time limit in “exceptional circumstances” under s 394 of the Fair Work Act.

● The circumstances which Mr Wolfgang have submitted are anything but exceptional or out of the ordinary. The cases are clear that circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Boeing submits that errors with uploading of documents are routinely encountered and not special. The length of delay of one day says nothing about whether there were exceptional circumstances: Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

● Mr Wolfgang has known about the dismissal from the date it took  effect and had the full 21 days available to him to make the application.

● Mr Wolfgang is not represented and cannot attribute the error to that of his representative.

● Boeing submits that there is no substantive merit to Mr Wolfgang’s application and it would not, in any event, succeed before the Commission.

Should you need to discuss, please contact me.

Kind regards
Melissa”

[7] I considered the response of the respondent.

[8] On 8 June 2016 I issued an Order extending the time for lodgement of Mr Wolfgang’s application by 1 day

[9] The relevant legislative framework for the exercise of the Fair Work 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.

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[11] 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.

[12] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[13] The reason Mr Wolfgang provided for his delay in lodgement related to a technical lodgement failure on the part of either Mr Wolfgang or the Fair Work Commission system.

[14] I was persuaded that Mr Wolfgang’s difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[15] Mr Wolfgang became aware of the end of his relationship with the respondent on 14 April 2016.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[16] Mr Wolfgang disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[17] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Wolfgang’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[18] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Wolfgang and other persons in a similar position-S.394(3)(f)

[19] There was no issue of fairness in relation to any other person in a similar position.

[20] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there was an exceptional circumstance which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. Mr Wolfgang’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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