Kevin Ashley v First 5 Minutes Pty Ltd T/A First 5 Minutes

[2015] FWC 7602

[2015] FWC 7602

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Ashley
v
FIRST 5 MINUTES PTY LTD T/A First 5 Minutes
(U2015/13594)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 11 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Ashley has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with First 5 Minutes Pty Ltd T/A First 5 Minutes (First 5 Minutes). At a telephone conference convened on 11 November 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Ashley’s application was lodged on 13 October 2015. In that application Mr Ashley confirmed that the termination of his employment took effect on 11 September 2015 and that he was advised of his dismissal on that day. Mr Ashley provided the following explanation for the late lodgement of his application:

“The 6 day delay of my application is due to the high level of stress I experienced as a result of my dismissal. I was provided a medical certificate by a treating Psychiatrist for this period as “unfit for work”. I was advised to take some time away from the situation to allow me some time to de-stress.

As a result of this professional advice, I departed Australia and travelled overseas to Bali to remove myself from the stressful situation in an attempt to improve my mental wellbeing.

I returned from Indonesia on 8^th October 2015 and still feel very strongly that my dismissal was unjust and unfair and therefore, I am proceeding with this application.” 1

[3] On 15 October 2015 my Associate corresponded with both Mr Ashley and First 5 Minutes and advised that the extension of time issue would be considered through a telephone conference on 11 November 2015. Substantial information about the extension of time issue was provided to the parties. Mr Ashley was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 2 November 2015.

[4] Additional information was received from Mr Ashley, dated 20 October 2015, in which he stated:

….

My position for requesting an extension of time is purely based upon my mental state at the time of being dismissed by my employer First 5 Minutes Pty Ltd.

As a result of my mental condition, my treating medical practitioner Dr M Ewer strongly advised that I take time away from the situation and take a leave of absence in an attempt to improve my mental well-being as a result of the large amount of stress I was suffering due to my employment with First 5 Minutes being terminated.

Dr Ewer has been providing me with ongoing Psychiatric treatment of post-traumatic stress disorder for a number of months as a result of my long service within the Military. The termination of my employment triggered an adverse effect on my mental state where I was advised to remove myself from the situation whereby I took a period of absence overseas to stabilise my mental condition.

To support my request for an extension of time, I have further attached for you the medical certificates which covers the period of my absence to couple the exit and entry dates from my passport that I had previously attached with my application. For this reason, I ask that you consider the merits of this statement and application as I was unable (at the time) to lodge an application within the legislative framework timelines.

I ask that you please consider my response and allow for an extension of time given that I was unfit to cope with the situation at the time of termination.”

[5] There were two medical certificates attached to Mr Ashley’s correspondence. Both were WorkCover Medical Certificates which indicated that Mr Ashley was suffering from post-traumatic stress disorder related to previous employment with the Australian Army. In combination, the certificates confirmed that he was unfit for work from 11.38am on 11 September 2015 to 1 December 2015. The second certificate, issued on 13 October 2015 referred Mr Ashley to a psychologist.

[6] The Employer’s Response to the application indicated that First 5 Minutes opposed the extension of time.

[7] In addition, on 9 November 2015 First 5 Minutes provided further extensive submissions setting out its objection to the granting of any extension of time.

[8] Mr Ashley participated in the telephone conference. Mr Zyngier, of counsel sought permission to represent First 5 Minutes. That permission was not granted, in that I was not persuaded that any of the factors specified in s.596(2) were satisfied. Accordingly, First 5 Minutes was represented by Ms Jones. I note that a sound file record of this telephone conference was kept.

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[10] I have concluded that the application was made some 11 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which stated:

“[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.”

[11] Mr Ashley’s reasons for the late lodgement of his application go to his assertion that, after the termination of his employment, his treating medical practitioner strongly advised that he should take time away from the situation and take a leave of absence to improve his mental well-being as a result of the large amount of stress he was suffering following the termination of his employment with First 5 Minutes. The two medical certificates provided to me do not confirm Mr Ashley’s assertions in this respect. Both certificates advised that he was unfit for work. Neither certificate recommends that Mr Ashley travelled to Bali, or, for that matter, anywhere else. Even more significantly, the first medical certificate which confirmed that Mr Ashley was unfit for work from 11 September 2015, also confirmed that his treating medical practitioner examined him at 11.38am on that day. That time pre-dated the termination of his employment. Had it been the case that there was medical advice which confirmed a recommendation for Mr Ashley to undertake travel to improve his medical condition, a more substantial case for an extension of time would apply. However, it is clear that Mr Ashley was able to organise travel arrangements for his trip to Bali and that, on his return from Bali on 8 October 2015, he was then able to lodge this application some five days later, whilst he remained subject to the same medical certificate that applied whilst he was in Bali. Neither certificate addresses in any way, Mr Ashley’s capacity to make an application of this nature. Consequently, I am unable to discern a medical basis which properly explains why he could travel to Bali but could not lodge this application within time. Furthermore, Mr Ashley has not satisfactorily explained why it was that he returned from Bali on 8 October 2015, but did not lodge this application until 13 October 2015. He asserts that he felt better and able to lodge this application on the day before he actually lodged it. I have taken the medical certificates on the plain words. As such, the certificates do not represent evidence of an incapacity to lodge this application before 13 October 2015. At the conference, Mr Ashley indicated that he could obtain further and more extensive medical advice, including some form of amendment to the initial medical certificate when he saw his treating medical practitioner later on 11 November 2015. As I explained to Mr Ashley, my directions in this matter required the provision of the material which he wished me to take into account in considering the extension of time issue. I was not disposed toward giving Mr Ashley additional opportunities to provide further information relative to what I regarded as deficiencies in his reasons for the delay. Mr Ashley’s position was that, after he was advised of the termination of his employment at around 4.00 pm on 11 September 2015, he visited his treating medical practitioner, was advised to take a holiday, arranged that holiday and then, at some time between 6.00 and 7.00 pm, contacted the First 5 Minutes State Manager to advise that he could not return any of the employer’s property until he returned from his holiday. The information before me does not support or confirm these contentions. I am not satisfied that Mr Ashley’s explanation of the delay represents a credible position or an exceptional circumstance.

[12] Mr Ashley became aware of the termination of his employment on the day upon which it took effect.

[13] I am not satisfied that, apart from the late lodgement of this application, Mr Ashley took other action to dispute the termination of his employment.

[14] There is no argument that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.

[15] In terms of the merits of the application, I have noted that Mr Ashley relies on the voluminous material attached to his application. I have reviewed this material. I have noted that the termination of Mr Ashley’s employment followed concerns about the efficacy of his conduct relative to business operations in which he was registered owner which First 5 Minutes was concerned represented a direct competitor. Further, First 5 Minutes detailed a series of other concerns about the manner of Mr Ashley’s response to the allegations made to him. First 5 Minutes provided comprehensive advice of its concerns in this respect to Mr Ashley on 11 August 2015. It invited him to address these concerns and stood him down with pay whilst its significant concerns were addressed. Mr Ashley and First 5 Minutes engaged in further correspondence relative to these concerns. Mr Ashley was clearly on notice that the termination of his employment was being considered. First 5 Minutes detailed the basis for the termination of Mr Ashley’s employment in correspondence of 11 September 2015. I have concluded that the merits of the application do not mitigate against an extension of time but do not contribute to an exceptional circumstances finding or conclusion.

[16] Considerations of fairness relative to other persons in similar positions do not generally support an extension of time.

[17] Accordingly, I have concluded that the material before me does not establish that Mr Ashley’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR573626) giving effect to this decision will be issued.

Appearances (by telephone):

K Ashley on his own behalf.

K Jones for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

November 11.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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