Justin Russell v Riverina Care Hire T/A Hertz

[2015] FWC 5956

[2015] FWC 5956

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Russell
v
Riverina Care Hire T/A Hertz
(U2015/6160)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 AUGUST 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] I am satisfied that Mr Russell lodged his application at the Fair Work Commission on 27 June 2015. There was a dispute concerning the date on which the relationship between Mr Russell and the respondent ended.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Russell. I have extracted the contents of paragraphs 1.4 and 3.2 of the applicant’s application below.

“I called Fair Work to follow up and was told forms still not received. I posted them on 20/6 but have got lost in the mail. I paid on 26/6 and attached comments as well. Reference number U2015/6160 pay reference AS1RD2DD643C

I was told new owners don’t have a DOB for me yet I got replaced on 16/6 when Riverina Car Hire employed a new person.

On 1/7 Jacob Group of companies hired a new person as well. Both new people hired are females and based at Queanbeyan shop. Myself and Laurie worked at Queanbeyan and we both were recently on workers comp. The same as Richard at Wagga who was also made redundant. I feel I was made redundant as I was on workers comp.

Myself and Laurie were based as Queanbeyan and were made redundant.”

[4] Mr Russell supplied a statement on 21 July 2015. It is extracted below.

“I was made redundant on 1 june 2015 and under workers comp.File was closed on june 4.I feel i was terminated because i was on workers comp.3 staff were made redundant,Laurie at queanbeyan and richard at wagga and we have all been on workers comp recently.Riverina car hire sold to new owners who take over on july 1 2015,jacob group of companies based in albury.I was told that new owners dont have a postion for me but yet riverina car hire employ new staff to replace me when i finished on june 15 2015.I was in a group meeting at hertz queanbeyan with ken morden and new owner dean jacob.We were all told of change and that everyones job is safe and they want no one to leave.Both riverina car hire and new owners are aware i was intersted in moving to albury if something come up in future as i have family in albury.I got told new owners dont have a postion for me but they are a big business and based in albury but i was not offered work with new owners in albury.I was told by john diesel no to apply for work with jacob group of compaines in albury upon being handed redundancy letter. WHY??

I was told on phone by john diesel while working my redundancy period that if i call in sick or have time off he can sack me,he said this isnt a threat a couple of times to me but it felt like it.I feel i was discriminated against and treated unfairly.How can i be told these things but yet i get replaced after i finish on june 15 and they hire someone to work in hertz queanbeyan and mitchell.I have never had any warnings or reprumands.There was a hertz in hume were i used to work and when it was closed down no one got made redundant.I was told by michael morris travelling in a car with chris from mitchell that the new owners did not interview him this was on june 1 after i got redundantcy letter.How can they make this decission then.”

[5] I wrote to Mr Russell on 23 July 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. Mr Russell provided a written statement on 23 July 2015.

[6] Mr Mordon, for the respondent, provided an Employer Response in which he indicated that the date of termination of Mr Russell’s employment was 30 June 2015.

[7] I issued an Order allowing Mr Russell’s application for an extension of time on 14 August 2015.

[8] 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.

[9] 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]

[10] 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.

[11] 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)

[12] The reasons Mr Russell relied on for any delay in lodgement of said of his application was a sham redundancy. In addition he submitted that there was confusion about the effective date of termination.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[13] Mr Russell became aware of the end of his relationship with the respondent when he was told that his employment was redundant

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

[14] Mr Russell disputed his dismissal by lodging this application.

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

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

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

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

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

[18] 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. The effective date of termination of employment was not clear and the factual issues surrounding the alleged redundancy of the applicant did not become apparent to the applicant until after termination of employment. I was satisfied that Mr Russell’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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