John Spencer v Surfside Buslines Pty Ltd T/A Surfside Buslines Pty Ltd (a member of the Transit Australia Group)
[2017] FWC 1164
•28 FEBRUARY 2017
| [2017] FWC 1164 [Note: An appeal pursuant to s.604 (C2017/1112 was lodged against this decision and the order arising from this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
John Spencer
v
Surfside Buslines Pty Ltd T/A Surfside Buslines Pty Ltd (a member of the Transit Australia Group)
(U2016/15230)
| SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 28 FEBRUARY 2017 |
Application for an unfair dismissal remedy.
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).
The relationship between Mr Spencer and the respondent ended on either 12 or 13 September 2016. Mr Spencer lodged lodged his application at the Fair Work Commission on 21 December 2016. Mr Spencer’s application was lodged 78 days outside the statutory time limit.
When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Spencer. I wrote to him on 6 February 2017 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 Spencer provided a comprehensive statement on 9 February 2017. I considered Mr Spencer’s statement and issued an Order refusing his application for an extension of time and dismissed his application on 21 February 2017.
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.
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]
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 s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
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)
Mr Spencer’s statement is set out below.
“Thank you for your letter of 6 February 2017 requesting a written statement from me. I shall now endeavour to provide such an appropriate statement. I shall not include any documents that I submitted with my initial application.
I did attend a meeting with the CEO of Surfside, along with the number 2 and number 3 of management in early January 2016 after an apparent customer complaint. It was alleged that I was using a handheld device and momentarily lost attention while driving. The “handheld” device was a transistor radio (not prohibited by the company, unless the driver is using earphones, which I was not) and was placed on the right hand side of the windscreen. It had gone off the station and I merely moved its control without picking it up. The CEO, number 2 and number 3 conferred and told me that I would receive a written warning and would be placed on a 3 months performance monitoring regime. I never heard from them again until I received the dismissal letter.
Reasons my application should be granted an extension of time beyond the statutory 21 days
1) The Reason for the delay
I had no idea that Surfside were even considering terminating my employment. The warning letter that they allegedly sent was never received by me. It must have been simply have been (sic) posted by ordinary mail. I was not aware of my dismissal for several weeks after it had taken effect.
2) Whether the person became aware of the dismissal after it had taken effect
I had no idea that I had been dismissed until I returned from an overseas holiday in late October 2016. Admittedly, it is the normal practice for casual drivers to fill in a leave form when they are going away so that they are not rostered on shifts. Such unpaid leave is generally automatically granted to casuals. However, since January 2016 the company did not contact me at all (apart from their alleged phone calls that were allegedly not answered- one phone call referred to below) so I assumed that I, as a casual employee, was out of favour and simply being ignored. This did not bother me as for the whole of 2016 I was busy dealing with my late father’s estate (numerous trips to Sydney etc.) Therefore, I simply did not bother to fill in a leave request form.
I categorically insist and swear however that I did attend the drivers’ room on the weekend of 30/31 July, signed on and off the logon machine (to test my driver’s card) and spoke to the two Operations staff who were on duty. (I estimate that I was there for about 20 mins or so.) One of them phoned me a couple of days later to offer me a shift, but unfortunately I wasn’t able to do it. I offered to do some shifts in the following week but received no more phone calls. That is the reason that I did not go to the driver’s room and fill in a leave form before I went on holiday in September 2016.
3) Any action taken to dispute the dismissal
After becoming aware of my dismissal I sent several letters (2 registered) to the Ernest Depot Manager. I did not receive any reply. Eventually the Depot Manager phoned me in response to my letter. I thought that this was somewhat ironic since he claimed for many months I had been uncontactable by phone.
4) Prejudice to the Employer caused by the delay.
I do not believe that there is any prejudice to the employer caused by the delay in my lodging the application.
5) The Merits of the Application
I sincerely believe that I have accurately outlined the merits of my application. I also believe that my (casual pro rata) long service leave (due on 12 Feb 2017) may have influenced the decision to terminate my employment.
6) Fairness between the person and other persons in a similar position.
I believe that a number of other persons have been unfairly dismissed from this company but they apparently have not taken any action about it.”
In essence Mr Spencer states that he was unaware of his termination of employment. He seems to have done very little to have confirmed his ongoing employment but was in any event aware that he had been dismissed in late October 2016.
I was not persuaded that Mr Spencer’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)
Mr Spencer became aware of the end of his relationship with the respondent in October 2016.
any action taken by the person to dispute the dismissal-s.394(3)(c)
Mr Spencer disputed his dismissal by contacting the respondent and lodging this application.
prejudice to the employer-s.394(3)(d)
I was satisfied that there would be no greater prejudice to the respondent caused by Mr Spencer’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)
Merit was a neutral issue in my consideration of this application.
fairness as between Mr Spencer and other persons in a similar position-s.394(3)(f)
There was no issue of fairness in relation to any other person in a similar position.
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 Spencer’s circumstances were not out of the ordinary course, unusual, special or uncommon.
SENIOR DEPUTY PRESIDENT
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