Jones v Bunnings Warehouse

[2016] FWC 1255

[2016] FWC 1255

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Sion Jones
v
Bunnings Warehouse
(U2016/3660)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        Mr Sion Jones alleged the termination of his employment by Bunnings Warehouse on

18 December 2015 was unfair.

[2]        His unfair dismissal application lodged on 10 January 2016 was not made within 21

days of the date of the dismissal.

[3]        The Fair Work Commission can extend time for the lodging of an unfair dismissal

application if it is satisfied that there are exceptional circumstances. In assessing whether

there are exceptional circumstances the Commission must have regard to certain matters.

Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion

to decide whether to extend time.

[4]        The meaning of “exceptional circumstances” was considered in Nulty v Blue Star

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Group Pty Ltd where the Full Bench said:

[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

[2016] FWC 1255

situation which is out of the ordinary course, unusual, special or uncommon.”

[Endnotes not reproduced]

(a) the reason for the delay;

[5]        Mr Jones gave evidence that his father was ill and he needed to fly to the UK. He was

advised of this on 29 December 2015. He left Australia on 30 December 2015 and lodged his

application whilst he was overseas. Mr Jones said that he suffered depression and this was

exacerbated by his dismissal. Further, when he was with his father he was required to do

much of the physical caring for him. Bunnings accepted that Mr Jones had a reasonable

explanation for the delay in lodging his application.

[6]        This weighs in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[7]        Mr Jones was aware of the dismissal when it took effect. He had the full 21 days to

lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[8]        Mr Jones did not take any steps to dispute his dismissal. This weighs against a finding

that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[9]        There was no evidence or submissions that Bunnings would suffer any prejudice. This

weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[10]      Mr Jones alleged that he was bullied by his supervisor. He said he suffered from

depression and was coping with having an ill parent who lived overseas.

[11]      Mr Jones alleged that his dismissal was unfair because he was not given any warnings

about not calling work to explain his absences.

[12]      Bunnings submitted that Mr Jones’ employment was terminated because of his

inability to attend shifts and advise his supervisors of his absence. It submitted that this had

been discussed with Mr Jones in March 2015, July 2015 and during 2014. However Bunnings

did not call any evidence to support this submission.

[13]      I am not able to make a final assessment of the merits as there are factual disputes

between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[14]      No submissions were made on this criterion.

[2016] FWC 1255

Conclusion

[15]      I am satisfied that there are exceptional circumstances. Mr Jones had a reasonable

explanation for the delay as shown by his uncontested evidence about the impact of his

depression along with his need to leave Australia urgently to deal with his father’s terminal

illness. While lack of prejudice alone is not sufficient to support a finding of exceptional

circumstances when combined with the reasonable explanation for the delay supports a

finding of exceptional circumstances.

[16]      I will order that Mr Jones be granted an extension of time to 10 January 2016 and his

application is referred to conciliation.

DEPUTY PRESIDENT

Appearances:

S. Jones on his own behalf.

T. Ats for the Respondent.

Hearing details:

2016.

Melbourne and Hobart by telephone link:

25 February.

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[2011] FWAFB 975