Jimwel Dubduban v FPC Green 1 Pty Ltd

[2016] FWC 9086

[2016] FWC 9086

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jimwel Dubduban
v
FPC Green 1 Pty Ltd
(U2016/11956)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 DECEMBER 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 s.394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Dubduban and the respondent ended, on Mr Dubduban’s submissions, on 11 August 2016. His application stated that he was notified of his dismissal on 16 August 2016 but that it was effective on 11 August 2016. He lodged his application at the Fair Work Commission (the Commission) on 29 September 2016. His application was lodged either 23 or 28 days outside the statutory time limit depending on whether 11 or 16 August 2016 was the date of termination of employment.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Dubduban. Paragraph 1.4 of the application is set out below:

“I applied online last August 30, 2016 and communicated with Brisbane Registry since then. After I lodge my application last August 30, I waited until 15 September 2016 then I followed up on the application but unfortunately I was told that there was no result found under my name and my application was not submitted online properly. I was advised again to lodge it properly. I am asking for your consideration since this is my first and I am in the Philippines and only depending on information I get from the internet.

Since I received my termination I have been disputing with my employer because before I received my termination I was stand down from my job since May 6 2016 I have no choice but to go home. Still I was in contact with my co workers and was told that there are work ongoing and even my fellow 457 visa holder was brought back to work. But my employer would not accept it.”

[4] I wrote to Mr Dubduban on 14 October 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 Dubduban provided a statement on 19 October 2016. His reply is set out below:

“Thank you for your e-mail, and sorry for the late reply. Yes it is true, my application was out of time.

To explain my side, I learned about the termination through email only, no phone calls to inform me. After I learned about it, I told my employer them that I will refer this to FWC including my Stand Down. The letter was dated 16 August 2016 and the effectivity of 11 August 2016. This is 3 months since I was stood down last 6 May 2016. I was stood down 3 times from 6 May 2016 until my termination. I humbly ask for the commission if possible to do a separate investigation about my stand down for I believe it was also illegal because since I was stood down my fellow operators are still working including my fellow 457 visa holder while I am being stood down.

At the time I learned about the termination I was home here in the Philippines with limited access to internet. (You have to go to internet shops in the city and pay to use the internet). I have no idea on what to do since it was my first time. My family was devastated by the sudden termination I received. It was until 30 August 2016 I found out through my search in the internet about [email protected] e-mail address. On 31 August 2016 I started communicating with Queensland registry FWC, I lodge my application online on the same day within the 21 day period.

On 15 Sept 2016, I followed up on my application but was told by Queensland registry that a search on my name did not return any result, that means I did not submitted my application online correctly.

Only until 29 Sept. 2016 I completed my application including exemption to pay $70 for the application. Because of ignorance and limited access to internet my application was late. With this reasons, I am hoping for your kind consideration.”

[5] I issued an Order refusing Mr Dubduban’s application for an extension of time and dismissed his application on 5 December 2016.

[6] The relevant legislative framework for the exercise of the 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.

[7] 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]

[8] For exceptional circumstances to arise as contemplated by s.394 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 s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[9] 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)

[10] The reasons Mr Dubduban provided for his delay in lodgement were:

• his location in the Philippines with limited access to Internet;



• his having been stood down in May 2016 until his termination of employment; and



• the failure of his first proposed application lodged on 30 August 2016.

[11] While sympathetic to these circumstances I was not persuaded that Mr Dubduban’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)

[12] Mr Dubduban became aware of the end of his relationship with the respondent in August 2016. I have given Mr Dubduban the benefit of assuming that his date of termination of employment was 16 August 2016.

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

[13] Mr Dubduban disputed his dismissal by attempting to lodge an earlier application and by lodging this application.

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

[14] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Dubduban’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)

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

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

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

[17] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Dubduban made an enquiry at the Fair Work Commission on 30 August 2016. An officer of the Registry of the Commission in Brisbane responded to him with detailed information regarding the lodgment of such claims. Mr Dubduban did not respond to that email. I was not satisfied that Mr Dubduban’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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