Jason Williams

[2014] FWC 8918

[2014] FWC 8918

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Williams
(U2014/15053)


Seah Williams
(U2014/15054)


v
N & R Pipicella T/A Gulfhaven Caravan Park

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 DECEMBER 2014

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

[1] Mr and Mrs Williams have lodged applications pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of their employment with N & R Pipicella T/A Gulfview Caravan Park (the Respondent). At a telephone conference convened on 9 December 2014 I advised that I had concluded that the applications were 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 and Mrs Williams’ applications were lodged on 12 November 2014. In those applications Mr and Mrs Williams advised that their employment was terminated with effect from 6 September 2014. Mr and Mrs Williams asked the Fair Work Commission (the FWC) consider the following information in deciding whether to accept their applications out of time:

“Extension of time frame due to my father being sick at the time of termination and dying on the 19/09/2014.

Copy of death notice attached.

At the time of events that took place, my family and I were trying to cope with knowing that my father: Grandfather was to die any day.

As well as being in a state of shock and traumatized, with the harsh and unjust way we were treated. We had no warning, nowhere to go, no wages and now unemployed.

I Seah Williams have been dealing with the suffering of depression and anxiety due to the above mentioned events, and am undergoing medical treatment and will be undergoing my first counselling appointment on the 17/11/14.

Copy of email of confirmation of appointment attached. Copy of doctor’s certificate can be supplied if required.

I am able to provide names of 12+ witnesses on the day of termination.

Copy of letters of which have been forwarded to ourselves have been attached.” 1

[3] On 19 November 2014 my Associate corresponded with both Mr and Mrs Williams and the Respondent and advised that the extension of time issue would be considered through a telephone conference on 9 December 2014. Substantial information about the extension of time issue was provided to the parties. Mr and Mrs Williams were directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 2 December 2014.

[4] Mr and Mrs Williams provided further information on 28 November 2014. They confirmed that the request for an extension of time was made on the basis of the terminal illness of Mrs Williams’ father and, his subsequent death on 19 September 2014. In this advice Mr and Mrs Williams advised that the termination of their employment was also a traumatic experience in that they were given seven days to vacate the accommodation associated with their employment and had significant difficulties accessing that accommodation over that period. They advised that Mrs Williams has been particularly stressed by a combination of these events and Mr Williams had been trying to resume further work and provide financial and emotional support to his family. Attached to this statement was a statement from Mrs Williams’ psychologist confirming that Mrs Williams had commenced seeing him on 17 November 2014 and a Centrelink Medical Certificate confirming that Mrs Williams had a limited capacity for work from 25 November 2014 to 25 February 2015.

[5] Despite a request for the provision of an Employer’s Response to the application, no such response has been received. Accordingly, I have noted that there is some uncertainty about the employment agreement attached to the applications which identifies the employer as Nick’s Hairdressing (Whyalla) Pty Ltd as trustee for the N & R Pipicella Property Trust.

[6] Mr and Mrs Williams participated in the telephone conference on 9 December 2014. The Respondent was represented by Mr G Pipicella as the son of its proprietors. Mr and Mrs Williams confirmed the advice provided to me in their witness statement. My conclusions about the extension of time issue were reached on the basis of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the applications were made some 46 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.”

[9] The illness and death of Mrs Williams’ father represents an acceptable reason why both Mr and Mrs Williams may not have acted immediately to challenge the termination of the employment. It does not, however, establish why no action was taken to lodge the application until 12 November 2014, more than two months after the termination of their employment. Mrs Williams’ depression and stress have not been established to me on medically sustainable grounds as precluding the lodgement of the application at an earlier time. It is clear that Mrs Williams has sought medical assistance but the material before me indicates that this was sought after the lodgement of this application such that I am unable to conclude that there is medical evidence that supports a conclusion that she was unable to act to lodge the application at any time earlier than 12 November 2014. Mr Williams advised that he too was grieving over this time and that he had to find other work and accommodation and care for his wife such that this matter “slipped his mind”. Accordingly, I am not satisfied that either Ms or Mrs Williams could not have acted earlier so as to lodge these applications. The delay in this instance is substantial. Acceptable reasons for the entirety of that delay have not been made out to me.

[10] It is clear from Mr and Mrs Williams’ applications that they were aware of the termination of the employment arrangement under which they worked on 6 September 2014 and that these terminations took effect from that date.

[11] Mrs Williams indicated that soon after the termination of her employment she obtained some legal advice but did not further seek advice about remedies of this nature until early in November. There is no material before me which establishes any action taken by Mr and Mrs Williams so as to establish an exceptional circumstance.

[12] Notwithstanding the absence of any material from the employer, I consider it that an extension of time of this magnitude would prejudice the Respondent.

[13] In terms of the merits of the application, I have noted that Mr and Mrs Williams assert that the termination of their employment was substantively and procedurally unfair. I have also noted the Respondent’s position is that this employment termination was related to allegations that Mr and Mrs Williams had charged personal expenses to the business. Accordingly, the merits of the application would require significant further consideration such that I have regarded this factor as a neutral factor in the consideration of the extension of time request.

[14] Consideration of fairness relative to other persons in a similar position do not support an extension of time, particularly where inadequate reasons for the entirety of a substantial delay have not been provided.

[15] Accordingly, and having assessed these factors on balance, I have concluded that the material before me does not establish that Mr and Mrs Williams’ circumstances can be regarded as exceptional so as to warrant extensions of time. The applications will be dismissed on this basis and an Order (PR558820) giving effect to this decision will be issued.

Appearances (by telephone):

J and S Williams on theirown behalf.

G Pipicella appearing for the Respondent.

Hearing (Conference) Details:

2014.

Adelaide:

December 9.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558819>