Kym Liddicoat v Sem Administration Pty Ltd T/A Sem Traffic Control

[2015] FWC 3747

[2015] FWC 3747

The attached document replaces the document previously issued with the above code on 4 June 2015.

Para [7] remove Mr Coulson and at Appearances: remove C Coulson and replace with S Fines-Phillips

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

5 June 2015

[2015] FWC 3747

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kym Liddicoat
v
SEM Administration Pty Ltd T/A SEM Traffic Control
(U2015/4015)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 JUNE 2015

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

[1] Mr Liddicoat 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 S.E.M. Administration Pty Ltd (SEM). At a telephone conference convened on 3 June 2015 I advised that I had concluded, on the material before me, 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 Liddicoat’s application was lodged on 17 March 2015. In that application Mr Liddicoat advised that he was notified of the termination of his employment on 23 February 2015 and that this termination took effect on 24 February 2015. In his application, Mr Liddicoat advised that the application was lodged within time.

[3] The Employer’s Response to the application asserted that the termination of Mr Liddicoat’s employment took effect on 23 February 2015. Accordingly, SEM asserted that the application was lodged out of time. Notwithstanding this, the application was listed for conciliation and it was only when this did not resolve the application that the matter was referred to me for determination of the extension of time issue.

[4] On 1 May 2015 my Associate corresponded with both Mr Liddicoat and SEM and advised that the extension of time issue would be considered through a telephone conference on 3 June 2015. Substantial information about the extension of time issue was provided to the parties. Mr Liddicoat was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 May 2015.

[5] Information was received from Mr Liddicoat on 1 June 2015 when he provided advice, by email, in the following terms:

“i understood my official date of termination to be 25th february 2015 as this is when i received my separation certificate. the date of termination was not filled in on that form and this is the only official document given to me regarding this matter by the respondent.” (sic)

[6] I have noted that, attached to the Employer Response (Form F3) is a signed and dated report into the investigations which led to the termination of Mr Liddicoat’s employment. This report is dated 23 February 2015. It concludes on the basis that:

“On the 20th February 2015 Kym came in a 9:00am for meeting with Adam and myself
Asked him if he need a support person he said no
Went on and showed Kym photos and statements
He said that the pot was his but the other stuff he didn’t know whose it was or how it got in his bag he also said that John should not have gone through his bag explained to him that John was looking for his ID and Medicare details as requested by the triage nurse
Told Kym that by his own admission the pot was his and he had it at work and as his job was classed as high risk that was a very serious safety breach
After consultation with Adam went back to Kym and advised him he could resign or we would terminate him for serious misconduct
Kym advised he wanted to be dismissed so we let him get his gear out the traffic truck and left
Kym rang and asked if he could think about it over the weekend said yes but have to have answer by Monday 23rd February 2015
Kym rang Adam and said he wanted to be dismissed which we did” 1

[7] Mr Liddicoat participated in the telephone conference. Mr Fines-Phillips from SEM also participated in this conference.

[8] My conclusions about the extension of time issue were reached on the basis of all of the information before me. 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] On the information before me I have concluded that the termination of Mr Liddicoat’s employment took effect on 23 February 2015. Mr Liddicoat agrees that, on 20 February 2015 he was given the opportunity of resigning or having his employment terminated. Later that day he asked for the opportunity to think about it over the weekend and, on 23 February 2015, he confirmed that he was not prepared to resign and understood he would be dismissed. This is consistent with the advice provided to me by SEM. The advice provided to me confirms that Mr Liddicoat was aware, on 23 February 2015 that he was dismissed. Accordingly, I am satisfied that the application was made one day outside of the 21 day time limit and hence, 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 Liddicoat’s reasons for the delay go to the extent to which, in the period before the termination of his employment and for some weeks after this, he was suffering from a broken ankle which limited his mobility and required significant pain relief. He advised that, as a consequence he was “a little muddled at that time”. Medical evidence to support his inability to lodge the application over this time has not been provided to me. Further, Mr Liddicoat advised that, approximately one and a half weeks after the termination of his employment he sought to obtain legal advice and arranged an appointment for 17 March 2015 on the basis that he understood the 21 day time period commenced from his receipt of the employment separation certificate on 24 or 25 February 2015. Following that appointment on 17 March 2015, Mr Liddicoat lodged his application on the same day. I am satisfied that Mr Liddicoat was aware of the termination of his employment on or before 23 February 2015. His subsequent receipt of an employment separation certificate does not alter the extent to which he was already aware of the termination of his employment. I am not satisfied that Mr Liddicoat has established that the reasons for the delay represent circumstances which should be regarded as exceptional for the purposes of an extension of time.

[12] I am not satisfied that, apart from the late lodgement of this application, Mr Liddicoat pursued other actions so as to challenge the termination of employment. I am not satisfied that an extension of time of this magnitude would prejudice SEM but this, of itself, does not provide a basis for an extension of time.

[13] The limited material before me relative to the merits of the application gives rise to significant doubt that the merits of Mr Liddicoat’s application are sustainable. However, information which would enable a definitive conclusion is not before me. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[15] Accordingly, I have concluded that the material before me does not establish that Liddicoat’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR567985) giving effect to this decision will be issued.

Appearances (by telephone):

K Liddicoat on his own behalf.

S Fines-Phillips for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

June 3.

 1   Form F3, Attachment “Investigation into Kym Liddycoat Incident”

 2   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567984>