Joseph Vella v Roadworx Surfacing Pty Ltd

[2015] FWC 3938

[2015] FWC 3938

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Vella
v
Roadworx Surfacing Pty Ltd
(U2015/3643)

SENIOR DEPUTY PRESIDENT DRAKE PERTH, 11 JUNE 2015

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 section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Vella and the respondent ended when the applicant received, on 1 December 2014, a letter notifying him of the termination of his employment. Mr Vella lodged his application at the Fair Work Commission on 3 March 2015. His application was lodged 80 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Vella. I wrote to him on 5 March 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days.

[4] Mr Vella was represented by the Construction Forestry Mining and Energy Union, Construction and General Division, NSW Branch (the CFMEU). The CFMEU provided a statement from Mr Vella, a statement from Michael Lane (an organiser from Wollongong) and an Outline of Submissions. The respondent provided an Employer Response, a statement of Mr Darryl Byrne and the respondent’s Outline of Submissions.

[5] I issued an Order allowing Mr Vella’s application for an extension of time on 29 April 2015.

[6] 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.

[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 s394 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.

[9] Mr Vella’s explanation for delay, contained in his application at paragraph 1.4, is set out below.

1. “On 1 December 2014, the applicant received correspondence from the respondent notifying him that his employment had been terminated.

2. On or around 2 December 2014, the applicant and his wife Annette Vella met with Mick Lane, CFMEU Organiser, at the CFMEU Wollongong office. At the meeting, the applicant informed Mick Lane that he had been unfairly dismissed and provided Mick lane with information on the circumstances leading up to the termination of his employment.

3. The applicant with the assistance of Annette Vella completed paperwork in relation to CFMEU filing on his behalf a relief from unfair dismissal. Mick lane informed the applicant that all the paperwork and details surrounding his dismissal would be forwarded immediately to the CFMEU office in Sydney. He also said that the CFMEU would file the relief from unfair dismissal application on his behalf.

4. Consequently, the applicant and Annette Wella [sic] contacted Mr Lane on numerous occasions to check the progress of his unfair dismissal claim. On each occasion, they were told that the details were passed on to the CFMEU office in Sydney, who had filed the unfair dismissal form and that the CFMEU office in Sydney would contact him after Christmas.

5. On 2 March 2014 [sic], it became apparent to the applicant that the CFMEU Sydney office had not received any paperwork relating to his unfair dismissal nor had they received notification that the applicant’s employment had been terminated.”

[10] In essence this application for an extension of time is based on the representational error of the union organiser of the CFMEU in Wollongong, Mr Michael Lane.

6. “Towards the end of 2014, I received a number of telephone calls from Joe Vella, who was obviously battling at work. Joe Vella told me that he was still experiencing problems, including from a supervisor who was continuing to make snide and derogatory comments about him. Joe Vella told me that he was trying to seeking [sic] the assistance of the Roadworx manager who had previously promised to ensure that he would not be bullied at work, however he was having difficulty in getting in to see that manager.

7. In approximately late November 2014, Joe Vella came in to the CFMEU office at Wollongong. He told me that Roadworx had terminated his employment. He filled in a CFMEU unfair dismissal complaint form. Ordinarily on receipt of a completed CFMEU unfair dismissal complaint form, I fax the form straight to the CFMEU’s Lidcombe office where the CFMEU’s legal and industrial staff are based. I do not clearly recall having a conversation with Joe Vella about the timeframe, as it was very late in the year. I told him that the Commission was very busy, and it was unlikely that the matter would be before the Commission for conciliation until early the following year.

8. There are no administrative staff employed in the CFMEU’s Wollongong office. I recall that at the time that Joe Vella came in to see me about the termination of his employment by Roadworx, we were extremely busy.

9. I have on past occasions made mistakes in attempting to fax documents, for example by putting in a telephone number rather than a fax number, and then leaving the office without realising that the fax has not gone though. Ido not keep fax transmission records.

10. In January 2015, I was on annual leave. Joe Vella telephoned me on one or more occasions, and I spoke to him on at least one occasion while I was on annual leave. I told him that I was on annual leave, but that when I returned from leave, i would chase up with the CFMEU legal department to find out what was happening with his matter.

11. In approximately late February or early March 2015, I spoke again to Joe Vella, and on 2 March 2015 I spoke to the CFMEU legal department. The CFMEU legal department told me that they had no record of receiving Joe Vella’s unfair dismissal complaint form. I dug out Joe Vella’s unfair dismissal complaint form and faxed it to the CFMEU legal department.

12. I am informed that the CFMEU legal department filed the application for Joe Vella on 3 March 2015.

13. I am informed that on receipt of a completed unfair dismissal complaint form, the CFMEU legal department’s administrative assistance records the unfair dismissal compliant on a spreadsheet, opens a file for the matter, allocates the file to an industrial officer, and enters the due date of the unfair dismissal application in the industrial officer’s electronic calendar. 1”

[11] Mr Byrne’s statement dealt with the merits of the application. I considered the submissions of the respondent, provided by its solicitors Moray and Agnew, which dealt with inconsistencies in the evidence of the Mr Vella, his wife and Mr Lane.

[12] 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)

[13] I was satisfied and found that the delay in lodgement of this application was predominantly the responsibility of the CFMEU. I was not prepared to visit that incompetence on the applicant. Whilst there were inconsistencies in the evidence that did not persuade me that the application for an extension of time based on representational error should be dismissed.

[14] Mr Vella is not a sophisticated person. Neither is his wife. They were entitled to rely on the processes and competence of the CFMEU. They were let down by Mr Lane.

[15] I was not persuaded that Mr Vella’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)

[16] Mr Vella became aware of the end of his relationship with the respondent on 1 December 2014.

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

[17] Mr Vella disputed he is dismissal by consulting the CFMEU and requesting that it represent him and lodge this application.

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

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

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

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

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

[21] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was on balance satisfied that Mr Vella’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Statement of Michael Lane

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