Kevin So v Qantas Ground Services Pty Limited

[2015] FWC 7714

[2015] FWC 7714

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kevin So
v
Qantas Ground Services Pty Limited
(U2015/10169)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 11 NOVEMBER 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 So and the respondent ended either on 11 July 2015 or 27 July 2015. Mr So lodged his application at the Fair Work Commission on 20 August 2015. Mr So’s application was lodged either 19 or 3 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr So. I wrote to him on 28 August 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 So provided comprehensive statements on 3 September 2015 and 4 September 2015 and a further explanation on 6 October 2015 in response to an enquiry from my chambers. Documents in support were provided. The respondent provided submissions on 16 September 2015 and Mr So responded to those on 21 September 2015. I issued an Order allowing the application for an extension of time on 28 October 2015.

[4] 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.

[5] 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]

[6] 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 s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] The first issue to be determined in this application is the date of termination of employment. On balance I am persuaded that the date of termination of employment was 27 July 2015. The delay in that circumstance was 3 days. However, for greater caution, I have considered and decided the application for an extension of time from the perspective of both possible dates of termination of employment.

[8] Mr So’s explanation for delay is set out his correspondence of 3 September 2015 which is extracted below.

“Your Honour

I am writing in regard to the reasons for the delay in submitting my application for an unfair dismissal from my former place of employment. I would like to preface this correspondence with an apology for the inconvenience I may have caused.

The main reasons for this delay is outlined below:

● My wife was scheduled for two major operations (a hysterectomy and sleeve gastrectomy) on Tuesday 4 August 2015.
● My wife has had a number of serious health conditions over the years, undergoing three major operations in the past 24 months, as well as being an existing insulin-dependent diabetic. She was retired due to her health conditions since August last year.
● Our only daughter lives in Canberra and I am the sole carer for my wife.
● At the time of her operation, her problems had not been fully verified or rectified.
● My sole priority was focused on her condition. I did not want to concern her with the stress and embarrassment of my recent dismissal, considering her current state.
● My wife’s proposed hysterectomy was cancelled due to the risks of the invasive surgery for patients with diabetes. However, her sleeve gastrectomy went ahead.
● She stayed in the hospital for three nights after the operation. A majority of my time was spent visiting her, attending to her personal needs and consoling her.
● After her discharge, an intensive full-time homecare was prescribed to prepare her special diet and to monitor and manage her risky, but stable condition.
● I was pre-occupied with these factors and overlooked the 21 days’ timeframe for the lodgement of my application.
● I have attached the documentation (Attachment A) to support these claims. Her surgeon has been on leave and the surgery is currently closed. Therefore I am unable to request for a medical report for my wife. However, I have attached the “Nursing Discharge Summary’ issued from St George Private Hospital as evidence for her operation. I would submit the medical report once the surgeon is return from leave.
● I have attached the letters from my wife’s endocrinologist and cardiologist which stated her medical conditions. (Attachment B)
● I have also attached the medical certificates for my wife previous medical operations as evidence for her medical conditions. (Attachment C)

● Background:

My letter of dismissal was received on Tuesday 28 July 2015 with the effective date of termination on 27 July 2015. Being a member of the Transport Workers Union of Australia (TWU), I sought advice immediately on Wednesday 29 July 2015, but received no advice or response. A copy of this correspondence to TWU can be found at Attachment D.
After waiting patiently for advice and a response from TWU and distracted by my wife’s hospitalisation, I finally submitted my application with legal representation on Thursday 20 August 2015, two days outside the 21 days’ timeframe.

I hope you are able to demonstrate understanding for my circumstances in your decision to grant me an extension for the lodgement of my application.
…”

[9] In relation to matters raised in the Employer Response Mr So responded as follows:

“I understand that you are still in the process of considering my request for an extension to lodge my unfair dismissal application. However, I would like to take the opportunity to respond to my former employer’s (the Respondent) submission dated 16 September 2015, as some of the statements are false and misleading.

1. The Respondent terminated my employment while I was on Approved Leave. My approved leave being for the period 15 July 2015 to 28 July 2015. This was approved by the HR Department and can be confirmed in my intranet account. The Respondent sent my dismissal letter on 27 July 2015.

2. Before my leave, I had been rostered up to the 14 July 2015, as well as for the period 31 July 2015 to 6 August 2015 (after my leave). This can be substantiated by my colleagues who had requested to exchange their shifts with me on 13, 14 July and 5 August 2015, and reflected in the e-roster on the intranet. These changes were approved and recorded on the system. My roster was subsequently cancelled at the last minute on 10 July 2015.

3. Even though I was employed as a casual, I was working regularly 5 days a week, with a minimum shift of 5 hours. In fact, I often worked more than 5 days a week, with extended shifts of up to 8 hours. Therefore, I had a reasonable level of confidence and expectation of continuing employment with the Respondent on a regular basis.

4. The Respondent stated that I was working irregularly for up to 4 weeks prior to my dismissal. This is false as I was in fact on 3 weeks approved leave in January and February 2015 to take care of my sick wife and therefore absent from work.

5. Since the termination of my employment, I have no access to the intranet and therefore unable to supply records of my rosters and leave approvals. I can supply bank statements, which show my regular income from the Respondent and thus substantiate my regular shifts. I can also provide my personal work diary for details of my rosters/shifts and approved leaves for the duration of my employment.

6. I am confident the Respondent has records of these claims (in the event they have not been erased or destroyed).”

[10] In determining this application 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)

[11] The reasons Mr So provided for his delay in lodging his application were primarily related to his wife’s serious illness and the need to be her carer. I considered that these were relevant matters whether or not the date of his termination of employment was 11 July 2015 or 27 July 2015. Mr So submitted that he was not available for shifts because of his wife’s illness and the first notification of termination of employment was received by him by registered mail on 28 July 2015. Whilst the respondent may have decided not to offer further to shifts to Mr So, he submitted that receipt of the correspondence from the respondent was the first occasion on which he was notified. In addition Mr So sought advice from his union but did not receive any assistance. He also consulted a solicitor but the application was not filed within the time limits prescribed by the Act.

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

[12] Mr So became aware of the end of his relationship with the respondent on receipt of correspondence from the respondent on 28 July 2015.

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

[13] Mr So disputed his dismissal by telephoning the respondent to question its correspondence and lodging this application.

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

[14] I was satisfied that there would be no greater prejudice to the respondent caused by this 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)

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

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

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

[17] 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 dismissed the application. In particular I have relied on the lack of clarity concerning the date of the termination of Mr So’s employment and its communication to him as well as the circumstance of Mrs So’s health. I am satisfied that Mr So’s circumstances were out of the ordinary course, unusual, special or uncommon sufficient to justify an exception to the statutory time limit.

SENIOR DEPUTY PRESIDENT

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