Leigh Foyster v Bunnings Group Limited T/A Bunnings Mindarie

[2017] FWC 1905

[2017] FWC 1905 [Note: An appeal pursuant to s.604 (C2017/3685) was lodged against this decision - refer to Full Bench decision dated 29 August 2017 [[2017] FWCFB 3923] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leigh Foyster
v
Bunnings Group Limited T/A Bunnings Mindarie
(C2016/6478)

COMMISSIONER RYAN MELBOURNE, 23 JUNE 2017

Application to deal with contraventions involving dismissal - extension of time.

[1] In order to attract the jurisdiction of the Commission the Applicant has had to metaphorically complete a gruelling steeple chase course. To win the Applicant only needed to cross the finish line. The Applicant successfully overcame every obstacle on the steeple chase course. No hedge was too high, no hurdle too difficult and no water hazard too deep for the Applicant to overcome. Having got through the course the Applicant was on the short straight heading towards the finish line when he tripped stumbled and fell and was out of the race - and only inches away from the finish line.

[2] The Commission determines that the application in this matter was made outside the 21 day time limit specified by s.366(1)(a) and that there are no exceptional circumstances present which would warrant the Commission exercising its discretion to extend the time in which the application could be made. The application is therefore dismissed.

[3] The Applicant filed a general protections application with the Commission on 31 October 2016. In his Form F8 general protections application the Applicant contends that the Respondent dismissed him on 2 September 2016 by letter but that the dismissal only took effect on 10 October 2016 when the Applicant, who had been overseas returned home on 5 October 2016 and became aware of the letter of 2 September 2016 on 10 October 2016. The Respondent filed a Form F8A and raised a jurisdictional objection to the application on the basis that the application was out of time. In its Form F8A the Respondent contended that the dismissal took effect on 6 May 2016 when the Respondent terminated the Applicant’s employment on the basis of being told by the Respondent’s insurance company that the Applicant had resigned his employment as part of a settlement of a workplace injury claim.

[4] The Application in this matter was listed for an extension of time hearing. The Applicant and the Respondent both filed detailed submissions and supporting material in relation to the extension of time matter.

[5] The Applicant, through his legal representative, Croftbridge, summarised the issues arising in this matter as follows:

“1. The issues that must be resolved for the purposes of this application are:

(a) was the applicant dismissed on 6 May 2016 by the payout of his annual and long service leave?

(b) if not, was the applicant dismissed:

(i) on or about 2 September 2016, being the date a letter was sent by the respondent, saying that “we will not be reinstating your position”(“the September 2016 Letter”); or

(ii) on 10 October 2016, when the applicant first saw the September2016 Letter;

(c) if the applicant was dismissed other than on 10 October 2016, should the applicant be entitled to commence this general protections claim out of time?

2. The applicant submits:

(a) he was not dismissed on or about 6 May 2016;

(b) he was dismissed on 10 October 2016 and therefore does not require an extension of time;

(c) if he was dismissed on or about 2 September 2016 and therefore does require an extension of time, he should be granted it.

3. If it is found that the applicant was dismissed on 6 May 2016, the applicant concedes that the application for extension of time should not be granted.”

[6] The Respondent, through its industrial organisation, VECCI summarised the issues as follows:

“The Respondent disputes the date which the dismissal took effect was 10 October 2016 as alleged. As the Application was filed on 31 October 2016, if the dismissal was on any date prior to this date, the Commission must be satisfied there are exceptional circumstances to allow an extension of time for the lodgement of the Application. Therefore, the Respondent submits the determination of the date the dismissal took effect is a threshold question which must be determined prior to the consideration of “exceptional circumstances”.

The Respondent acknowledges if the Commission determines the “date the dismissal took effect” is 10 October 2016, its jurisdictional objection is incompetent and must fail as the Application would have been filed ‘in time’. The Respondent submits the date the “dismissal took effect” is either 13 September 2016, 24 September 2016, or 27 September 2016, or such other date the Commission is satisfied the applicant was aware, or should had a reasonable opportunity to be aware, his dismissal had taken effect.” [references omitted]

[7] The Respondent’s position changed significantly between filing the Form F8A on 10 November 2016 and filing the Respondent’s Outline of Submissions Re Extension of Time on 14 March 2017. The Respondent abandoned its original contention that the Applicant was dismissed and the dismissal took effect on 6 May 2016 and instead identified the earliest date that the dismissal could have taken effect as being 13 September 2016.

[8] Whilst the Applicant does not refer to the 13 September 2016 as being a relevant date the Commission considered that it could be a relevant date and raised a matter with the parties at the first hearing of this matter.

[9] The Respondent identified in its material that it sent a letter to the Applicant by mail on 2 September 2016 advising that his employment was ended. On 13 September 2016 the Respondent identified that it sent an email to the Applicant and that the email contained as an attachment a copy of the letter of 2 September 2016. The Applicant in his material contended that he never received the email of 13 September 2016. The Applicant conceded that on 24 September 2016 whilst he was overseas that he checked his emails and found an email from the Respondent dated 5 August 2016 and that he replied to that email.

[10] Given the competing positions of the parties with the Respondent relying on an email to the Applicant on 13 September 2016 and the Applicant denying that he received any email from the Respondent dated 13 September the Commission asked the Respondent if it wanted an opportunity to prove the sending of the email on 13 September 2016 and to prove that the email was received by the Applicant. The Respondent accepted the opportunity to explore what evidence it could lead in relation to the sending and receipt of the email of 13 September 2016. The Applicant was afforded the opportunity of responding to any material produced by the Respondent, including by way of leading any evidence to rebut the Respondent’s case.

[11] The significance of the 13 September email is clear. If the email was received by the Applicant then the Applicant could be taken to have become aware of the contents of the email on 24 September 2016 when the Applicant checked his emails and found and replied to an email from the Respondent received on 5 August 2016. However, if the 13 September 2016 email from the Respondent was not received by him then the Applicant may have only become aware of the dismissal letter of 2 September 2016 either by way of the email from the Respondent to the Applicant on 27 September 2016 or when the Applicant returned home from his overseas trip and opened his mail on 10 October 2016.

[12] The Respondent provided a technical statement from its IT Security and Risk Manager which identified that the Respondent could not “acquire proof of delivery code” in relation to the email of 13 September 2016. However, the Respondent’s IT Security and Risk Manager contended that “the investigations completed suggest successful delivery of this email”.

[13] The Applicant engaged the services of an IT expert to examine the email account of the Applicant. The Applicant conceded that “in light of the expert evidence …….. that the relevant email did in fact ‘arrive’ in his email ‘inbox’ ”. However the Applicant maintained that he had never seen that email.

[14] A second hearing occurred in relation to this matter to allow the Applicant and the Respondent to lead evidence relevant to the issue in contention. The Applicant led evidence from both the Applicant and his wife in relation to an overseas holiday that they took, the difficulty of accessing internet services whilst on that holiday, actions of both the Applicant and his wife which may have impacted on the ability of the Applicant to access the email of 13 September 2016 and the conduct of the Applicant on arriving home from his overseas holiday. The Respondent led evidence from one of its HR employees in relation to the steps taken by the Respondent to communicate with the Applicant from July 2016 until end of September 2016 including communications advising the Applicant of his dismissal.

Relevant Authorities

[15] A Full Bench of the Commission in Ayub v NSW Trains 1(Ayub) considered when a dismissal takes effect for the purpose of the 21 day time limit in which an unfair dismissal application must be made. Whilst that decision considered s.394 the same considerations apply to s.366 of the Act. The Full Bench in Ayub noted that there was a “general principle at common law that a dismissal may not take effect prior to it being communicated to the employee.” In relation to the operation of the time limit in s.394(2) the Full Bench said:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.

[48] Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.” [citations omitted]

Consideration

[16] Whilst the Applicant concedes that the email from the Respondent on 13 September 2016 was received by the Applicant, the Applicant maintains that that that email was never seen by the Applicant or his wife. The evidence of the Applicant’s wife is that it is possible that she inadvertently deleted the email from the inbox. The Applicant gave evidence that he could have inadvertently cleared the Trash box. The Applicant’s wife was not cross examined but the Applicant was. The Commission has no reason to disbelieve the sworn evidence of the Applicant and his wife. Whilst that evidence does not establish exactly how and when the email of 13 September 2016 was removed from the Applicant’s email account, the evidence is sufficient for the Commission to “feel an actual persuasion” that the email was deleted before the Applicant had a chance to see it. In the present matter the Commission is reasonably satisfied that the email of 13 September 2016 was not available for the Applicant to see and that the Commission’s reasonable satisfaction is based upon the definite testimony of the Applicant and his wife and on direct inferences which can be drawn from that testimony. 2

[17] There was a clear conflict between the evidence of the Ms Flint and the evidence of the Applicant in relation to the sending and receipt of letters to the Applicant. I resolve that conflict by preferring the evidence of the Applicant over that of Ms Flint. This does not require any adverse comment about Ms Flint’s evidence. The issue is whether the Applicant had received two letters from the Respondent and that the Applicant became aware of the contents of these letters when he opened his postal mail on 10 October 2016. The required standard of proof in a matter such as the present was succinctly expressed by Dixon J in Briganshaw v Briganshaw at 361:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.”

The oral evidence of the Applicant is consistent with the originals of the letters he said he had received and which were provided to the Commission.

[18] In written submissions filed on 7 March 2017 in support of an extension of time the Applicant’s legal representative contended as follows:

“29. The applicant did not take action to dispute the dismissal until 10 October 2016 because he did not know that it had occurred. After that date, he sought advice from his nephew within 3 days, contacted a lawyer (Mr Lethbridge of Croftbridge) within a further 6 days, met with Mr Lethbridge 6 days later and filed the application 3 days later. It is submitted that these are not unreasonable delays in the circumstances.”

[19] In an Outline of Argument – Extension of Time filed by the Applicant’s legal representative on 7 March 2017 the Applicant put the same contention in slightly different language as follows:

“(n) On 27 September 2016, Ms Flint sent an email referring to the 15 August letter and the Dismissal letter and stating that “your employment has not been reinstated.” The applicant did not check his emails until on or after 10 October 2016.

(o) The applicant returned to Perth on 5 October 2016.

(p) On 10 October 2016, the applicant checked through a pile of letters that were received whilst away and saw, for the first time, the 15 August Letter and the Dismissal letter.

(q) On 13 October 2016, the applicant contacted his nephew for advice, who took 6 days to get back to him.

(r) On 19 October 2016, the applicant’s nephew recommended that the applicant seek legal advice from Mr Lethbridge of Croftbridge, which the applicant did on that day. The applicant met with Mr Lethbridge on 25 October 2016 and received written advice on 28 October 2016.

(s) The applicant, on advice from Mr Lethbridge, ensured that an application was filed by 31 October 2016, being 21 days from 10 October 20116.”

[20] The Applicant in his witness statement 3 explained the delay in in accessing his mail after returning home from his holiday as follows:

30. I arrived back in Perth on 5 October 2016.

31. While away, we had organised for a young man, my neighbour, (name redacted) (15 years old), to look after the house. He had put all of the mail we had received in a cardboard box. He had not opened any of it.

32. When we arrived home, he was on holiday in Bali. The box had been left in the garage behind my car and I did not see it immediately – I cannot recall exactly how long it took for me to find it.

33. I did not get around to sorting through the box of letters until 10 October 2016. I went through them all on that day, and found the two letters from Ms Flint – they are attached and marked “LF-4” and “LF-5”.

34. Prior to finding those letters, I did not have any reason to believe that I had been dismissed or that I might be dismissed as Ms Flint had requested a medical report from my doctor. If I had known this was possible, I would have checked my mail as soon as possible after I arrived home. I had no reason to believe there was anything urgent or particularly important in the box of unread letters.

[21] In final oral submissions, Mr Lethbridge of Croftbridge summed up the Applicant’s case as follows:

“…but if you are asked to choose between one version of events, the respondent's and our version of events, we say that ours is logical, simple, doesn't involve anyone lying, doesn't involve any conspiracies, doesn't involve any deception. The worst it involves is Ms Flint sending a copy of a letter and then forgetting that she did it. Their version involves a conspiracy by my client lying on oath, lying to his wife and showing computer skills and knowledge of the law that he simply didn't have.

We, therefore, submit that the finding should be made that our version of events is accepted that he did receive the letter on 10 October and that that was the first time he knew he had been dismissed.

[22] The elegant simplicity of Mr Lethbridge’s summation is compelling and having regard to the evidence before the Commission the Commission accepts the correctness of Mr Lethbridge’s summation that the first time that the Applicant knew he had been dismissed was on 10 October 2016. Referring back to the analogy in the opening paragraph of this decision it is at this point that the Applicant has overcome the obstacles on the steeple chase course and is entering the short run down the straight to the finish line. The critical issue raised by this matter is not when did the Applicant first become aware of his dismissal but rather when did the Applicant first have a reasonable opportunity to find out that he had been dismissed.

[23] In his witness statement the Applicant made the admission that “I do not regularly check my emails even when at home.”

[24] In the context of this matter the Commission accepts that the Applicant did not have easy or ready access to the internet and therefore to his email account whist he and his wife were on an overseas holiday. The Commission also accepts that on arrival back in Perth on 5 October that the Applicant did not have access to his mail until 10 October 2016. However the Applicant concedes that the Respondent sent an email on 27 September 2016 which contained the dismissal letter. The Applicant does not contend that that email was not available for the Applicant to read when he arrived back in Perth on 5 October 2016 or on the days before 10 October 2016. Apart from the admission by the Applicant that “I do not regularly check my emails even when at home” there is nothing put by the Applicant to explain why the email sent by the Respondent on 27 September 2016 was not available for the Applicant to read when he arrived back in Perth on 5 October 2016. Under cross examination the Applicant conceded that he did not check his emails until after 10 October 2016:

Mr Barkatsas: But even after you return home on 5 October where you say that you access your emails from your personal computer, there is still another five days before you check your email?--- Mr Foyster: Before I check my incoming mail, not emails.

Mr Barkatsas: No, you said you checked your emails on 10 October as well.  That is also your evidence?---Mr Foyster: Okay, if that's what you say.  I don't recall it, but fair enough.

Mr Barkatsas: In your F8 application it stated on your behalf that:  "The applicant did not check his emails until or on or after 10 October 2016"?---Y Mr Foyster: es, okay, fair enough.

Mr Barkatsas: Notwithstanding the burning problem and the great concern that you have, there is still another five days before you check your email, not your post?--- Mr Foyster: That's right.

[25] In the circumstances of this matter where the Applicant was aware that the Respondent had communicated with him by email in relation to his employment (as was clear with the email of 15 August 2016 which the Applicant read and responded to whilst overseas on 24 September 2016) it is surprising that the Applicant did not consider to check his email account when he arrived back in Perth on 5 October 2016 or at the very least on the next day, 6 October 2016.

[26] In the present matter the Commission is prepared to treat 5 October 2016 as a day on which it would not be reasonable to expect the Applicant to have accessed his email account. Jetlag alone would provide a reasonable excuse as to why any person would not immediately go to their email account on arrival home after an overseas holiday. Even making an allowance for 5 October 2016 it would appear that it is reasonable to conclude that the Applicant had the ability to access his email account on 6 October 2016 and on 7 October 2016 and on 8 October 2016 and on 9 October 2016. This being the case then the Applicant had a reasonable opportunity of knowing that he had been dismissed at least as from the 6 October 2016. In his witness statement, Exhibit A2 the Applicant said: “I would have checked my emails much more regularly if I thought there was any chance that I was going to be dismissed whilst overseas.”. The Applicant further said in relation to the mail opened on 10 October 2016: “Prior to finding those letters, I did not have any reason to believe that I had been dismissed or that I might be dismissed as Ms Flint had requested a medical report from my doctor. If I had known this was possible, I would have checked my mail as soon as possible after I arrived home. I had no reason to believe that there was anything urgent or particularly important in the box of unread letters.” The only conclusion that can be drawn from the evidence of the Applicant is that he could have but chose not to check his emails between 5 October 2016 and 10 October 2016.

[27] For the purpose of s.366(1) the dismissal of the Applicant took effect when the Applicant had a reasonable opportunity of knowing the contents of the dismissal letter which had been emailed to him. This date was 6 October 2016. The 21 day time limit set by s.366(1)(a) runs as from 6 October 2016. As the application was filed on 31 October 2016 it was out of time.

[28] For the Applicant to succeed in having the Commission grant an extension of time in which to make the application the Applicant must satisfy the Commission that exceptional circumstances exist and that the Commission should exercise its discretion to grant an extension of time. The requirements for a grant of an extension of time are set out in s.366(2) as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[29] It is appropriate to observe that s.366(2) sets out an exhaustive list of the matters that must be taken into account. The language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) does not require or even permit the Commission to take into account “any other matters that the FWC considers relevant” which is a requirement in both s.387(h) and s.392(2)(g), nor does the language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) require or even permit the Commission to “take into account all the circumstances of the case” which is a requirement in s.392(2).

[30] The relevant authority for considering whether “exceptional circumstances” exist is Nulty v Blue Star Group P/L which 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] HCA 39; (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] HCA 45; (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) [1999] UKHL 4; [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.” 4

[31] In the present matter s.366(2)(e) is not a relevant criteria as there are no other persons in a like position to the Applicant. However each of the other criteria in s.366(2) are relevant and must be taken into account. It is important to note that the criteria which must be taken into are for the sole purpose of determining whether exceptional circumstances are present which would then permit the Commission to exercise a discretion to grant an extension of time. I approach the term “exceptional circumstances” having regard to the decision in Nulty v Blue Star Group.

Reason for the delay

[32] The Applicant had 21 days from 6 October 2016 in which to file a general protections application. The Applicant filed his application on 31 October 2016 which was 4 days outside the 21 day time limit. In the application in this matter the Applicant provided a lengthy explanation as to why the Applicant asserted that the application was filed within time. Part of that explanation was as follows:

“(n) On 27 September 2016, Ms Flint sent an email referring to the 15 August letter and the Dismissal letter and stating that “your employment has not been reinstated.” The applicant did not check his emails until on or after 10 October 2016.

(o) The applicant returned to Perth on 5 October 2016.

(p) On 10 October 2016, the applicant checked through a pile of letters that were received whilst away and saw, for the first time, the 15 August Letter and the Dismissal letter.

(q) On 13 October 2016, the applicant contacted his nephew for advice, who took 6 days to get back to him.

(r) On 19 October 2016, the applicant’s nephew recommended that the applicant seek legal advice from Mr Lethbridge of Croftbridge, which the applicant did on that day. The applicant met with Mr Lethbridge on 25 October 2016 and received written advice on 28 October 2016.”

[33] The application was signed by Mr Lethbridge of Croftbridge and was filed with the Commission on 31 March 2017.

[34] In his Outline of Argument – Extension of time which was filed with the Commission on 7 March 2017 the Applicant repeated what was in his application at paragraphs (o) to (r) of his application and added a paragraph (s) as follows:

“(s) The applicant, on advice from Mr Lethbridge, ensured that the application was filed by 31 October 2016, being 21 days from 10 October 2016.”

In his written submissions in support of an extension of time, which were also filed with the Commission on 7 March 2017, the Applicant’s legal representative contended as follows:

“29. The applicant did not take action to dispute the dismissal until 10 October 2016 because he did not know that it had occurred. After that date, he sought advice from his nephew within 3 days, contacted a lawyer (Mr Lethbridge of Croftbridge) within a further 6 days, met with Mr Lethbridge 6 days later and filed the application 3 days later. It is submitted that these are not unreasonable delays in the circumstances.”

[35] When the Applicant contacted Croftbridge on 19 October 2016 he was within the 21 day time limit. When the Applicant met with Mr Lethbridge of Croftbridge on 25 October 2016 he was still within the 21 day time limit. However the 21 day time limit had expired by 28 October 2016 when Mr Lethbridge of Croftbridge provided advice to the Applicant and by the time Mr Lethbridge of Croftbridge filed the application on 31 October 2016 it was 4 days outside the 21 day time limit. Representative error may provide a reason for delay in filing a general protections application in time such that the representative error weighs in favour of a finding that exceptional circumstances exist. In the present matter no argument was put to the Commission and no evidence led by the Applicant or his legal representative that the reason for the delay was due to representative error.

[36] There is nothing in the explanation for the reason for the delay in filing the general protections application out of time which is exceptional or out of the ordinary. The reason for the delay in many respects is all too normal. The Applicant didn’t check his emails when he could have. When he eventually finds out that he has been dismissed he contacts a nephew and waits for some advice from his nephew. He immediately acts on the advice of his nephew, which was to get advice from a lawyer. He contacts a lawyer then waits until he gets to meet the lawyer, then waits for the lawyer to advise him and then acts on the advice of the lawyer.

Any action taken by the Applicant to dispute the dismissal

[37] Contrary to the final submissions of the Respondent this criteria must weigh in favour of a finding that exceptional circumstances exist. Up to and including the time when the Respondent filed its Form F8A - Response to general protections application, the Respondent considered that it had terminated the Applicant on 6 May 2016. The Respondent acknowledged that the Applicant had disputed that termination by writing to the Managing Director of Wesfarmers in June 2016 and in meetings with the Respondent in July 2016. The communications between the Applicant and the Respondent in September 2016 show that the Applicant was clearly engaged with the Respondent over the question of his employment status. The fact that in March 2017 the Respondent abandoned its position that termination had occurred on 6 May 2016 and instead contended that dismissal occurred in September 2016 supports a conclusion that the Applicant had been actively disputing his 6 May 2016 termination and with some effect.

Prejudice to the Respondent (including prejudice caused by the delay)

[38] The Respondent makes no contention that it has suffered prejudice. The lack of prejudice does not assist the Applicant. However the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’. 5

[39] In the present matter this criteria must have neutral value in any consideration as to the existence of exceptional circumstances.

The merits of the application

[40] The merits of the application have not been canvassed before the Commission during this extension of time proceeding, nor is it appropriate that the parties do so. In the present matter this criteria must have neutral value in any consideration as to the existence of exceptional circumstances. 6

Conclusion

[41] Taking into account each of the relevant criteria in s.366(2) the Commission is not satisfied that there are exceptional circumstances in relation to the out of time application in this matter which would enliven the discretion of the Commission to grant an extension of time. Whilst the criteria in s.366(2)(b) weighs in favour of a finding that there are exceptional circumstances the criteria in s.366(2)(a) weighs heavily against a finding that there are exceptional circumstances.

[42] As the application in this matter was filed out of time the application must be dismissed.

COMMISSIONER

 1   [2016] FWCFB 5500.

 2   Briganshaw v Briganshaw Dixon J at 361 and 362.

 3   Exhibit A2.

 4   [2011] FWAFB 975.

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 6   Kyvelos v Champion Socks Pty Ltd Print T2421 [14].

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