Jim Hansen v DJ Munyard Services

[2015] FWC 5292

[2015] FWC 5292

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jim Hansen
v
DJ Munyard Services
(U2015/8298)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 AUGUST 2015

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

[1] Mr Hansen 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 DJ Munyard Services (DJ Munyard). At a telephone conference convened on 4 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 Hansen’s application was lodged on 9 June 2015. I note that the application was initially made by telephone and that extensive efforts were made by the Fair Work Commission staff to obtain a completed application form. That application form was not received until 6 July 2015. In that application he advised that his employment was terminated with effect from 17 May 2015. In his application Mr Hansen acknowledged that the application was not made within time and requested that the following advice be taken into account in favour of an extension of time:

“The reason for the delay is I said and agreed to wait till he can pay me out and if I proceed with Fair work he will go bankrupt and i will get nothing I don’t know what i can do? 1 (sic)

[3] On 13 July 2015 my Associate corresponded with both Mr Hansen and DJ Munyard and advised that the extension of time issue would be considered through a telephone conference on 4 August 2015. Substantial information about the extension of time issue was provided to the parties. Mr Hansen was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 28 July 2015. Mr Hansen was advised that:

“8. You bear the responsibility for demonstrating that an extension of time should be granted, or, in the alternative, is not required. If you fail to comply with these instructions, the Senior Deputy President may determine the matter on the material before him.” 2

[4] Mr Hansen did not provide any further material relative to the extension of time issue.

[5] The Employer’s Response to the application confirmed that Mr Hansen was a casual employee, and was one of ten employees made redundant following the loss of a cleaning contract. This response objected to an extension of time and also asserted that the termination of Mr Hansen’s employment was consistent with the Small Business Fair Dismissal Code.

[6] Mr Hansen did not participate in the telephone conference. Mr Munyard, the proprietor of DJ Munyard participated in this conference. I note that a sound file record of this telephone conference was kept. I have set out below my preliminary conclusions in relation to this matter. Those conclusions have been reached on the basis of the material provided before me.

[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] I have concluded that the termination of Mr Hansen ‘s employment took effect on 17 May 2015. Accordingly, I am satisfied that the application was made two days outside of the 21 day time limit, even without recognition of Mr Hansen’s delayed provision of his written application. Consequently, the application 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 3 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] Mr Hansen’s application indicates that reason for the delay is that he was waiting for payment of his entitlements which he asserted had not been paid to him. In this respect his application effectively represents a claim for unpaid employment entitlements rather than an unfair dismissal application. In his application, Mr Hansen seeks public holiday payments, long service leave and superannuation. He asserts that, some weeks before the termination of his employment, his employment was changed from weekly hire to casual employment. These factors may enable Mr Hansen to pursue an underpayment claim but they do not represent an acceptable reason for the delay in lodging the application. Mr Hansen has not established that exceptional circumstances over the entirety of the time since the termination of his employment explained the delay in the lodgement of the application.

[10] Mr Hansen’s application indicates that he was aware of the termination of his employment on the day on which it took effect. I acknowledge that, apart from this application, he had discussions with Mr Munyard about the payment of his entitlements before lodging the application.

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

[12] In terms of the merits of the application, the information before me indicates that Mr Hansen should be pursuing an application for the payment of entitlements due to him. That is not a matter within the jurisdiction of the Fair Work Commission or a matter which can be addressed through this application. Accordingly, I do not consider that the merits of this application support an extension of time. It is appropriate that I note that, in the conference on 4 August 2015, Mr Munyard confirmed that he recognised that certain employment entitlement payments were due to Mr Hansen and that he was about to make payments in this respect.

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

[14] Accordingly I have concluded that the material before me does not establish that Mr Hansen’s circumstances can be regarded as exceptional so as to warrant an extension of time. I am prepared to review my position in this respect if I receive written advice from Mr Hansen on, or before 12 August 2015, which establishes, to my satisfaction, that he was unable to participate in the conference on 4 August 2015. Absent advice in this respect, I propose to dismiss the application for the reasons I have outlined and to issue an Order giving effect to this decision on, or shortly after 12 August 2015.

Appearances (by telephone):

D Munyard for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

August 4

 1   Form F2, para 1.4

 2   FWC Correspondence to Applicant, 13 July 2015

 3   [2011] FWAFB 975

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