Jesse Czubak v R&E Giglio Pty Ltd & Atcr Pty Ltd T/A All Transport Crash Repairs

[2015] FWC 5252

[2015] FWC 5252

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesse Czubak
v
R&E Giglio Pty Ltd & ATCR Pty Ltd T/A All Transport Crash Repairs
(U2015/8736)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 AUGUST 2015

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

[1] Mr Czubak 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 R&E Giglio Pty Ltd & ATCR Pty Ltd T/A All Transport Crash Repairs (All Transport). At a telephone conference convened on 3 August 2015 I advised that I had concluded 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 Czubak’s application was lodged on 23 June 2015. In that application he advised that his employment was terminated with effect from 1 June 2015. In his application Mr Czubak asserted that the application was made within time.

[3] On 10 July 2015 my Associate corresponded with both Mr Czubak and All Transport and advised that the extension of time issue would be considered through a telephone conference on 3 August 2015. Substantial information about the extension of time issue was provided to the parties. Mr Czubak was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 July 2015.

[4] Mr Czubak provided an explanation for the time of lodgement of the application in the following terms:

“The reason for the delay on Application for Unfair Dismissal Remedy is because I send it to the wrong State. Victoria instead of Sth. Australia.” (sic)

[5] I note as a matter of fact, that the application was sent to the Melbourne Fair Work Commission premises.

[6] The Employer’s Response to the application confirmed the correct name of the business. I have utilised the discretion available to me to amend the application accordingly.

[7] Mr Czubak participated in the telephone conference. Mr Giglio, the proprietor of All Transport also participated in this conference. I note that a sound file record of this telephone conference was kept.

[8] 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.”

[9] I have concluded that the termination of Mr Czubak employment took effect on 1 June 2015. Accordingly, I am satisfied that the application was made one day 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 1 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.”

[10] Mr Czubak’s reason for the delay is that he was aware of the requirement to lodge the application within 21 days but that he did not send the application until shortly before the expiry of that time. He advised that the application was sent to the Melbourne FWC office in error and that the delay was a consequence of that error. I have considered the entirety of the period after the termination of Mr Czubak’s employment. I am not satisfied that there is an acceptable reason for the entirety of that time. Mr Czubak was obliged by the FW Act to ensure that the application was received by the FWC within the 21 day period. He did not meet that obligation. Furthermore, I am not satisfied that the fact that the application was sent to the Melbourne FWC premises actually meant that it arrived later than would have been the case if it was sent to the Adelaide office.

[11] Accordingly, I am not satisfied that Mr Czubak has established that the reason for the delay in this matter represented exceptional circumstances.

[12] Mr Czubak was aware of the termination of his employment on the day on which it took effect. Apart from this application he did not take other action to dispute the termination of her employment.

[13] I do not consider that an extension of time of this magnitude would prejudice All Transport but this, of itself, does not provide a basis for an extension of time.

[14] In terms of the merits of the application, the information before me does not enable a definite conclusion so that I have regarded the merits of the application as a neutral factor relative to the extension of time.

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

[16] Accordingly I have concluded that the material before me does not establish that Mr Czubak’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR570051) giving effect to this decision will be issued.

Appearances (by telephone):

J Czubak on his own behalf.

R Giglio for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

August 3

 1   [2011] FWAFB 975

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