Leon Marshall v Bytecan Pty Ltd

[2015] FWC 419

[2015] FWC 419

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leon Marshall
v
Bytecan Pty Ltd
(U2014/15966)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 JANUARY 2015

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

[1] Mr Marshall 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 Bytecan Pty Ltd (Bytecan). At a telephone conference convened on 16 January 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 Marshall’s application was lodged on 15 December 2014. In that application Mr Marshall advised his employment was terminated on 10 November 2014. Mr Marshall asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“Within minutes of my employment termination I was seeking legal advice from Fairwork regarding my unfair dismissal.

I was asked how long had I been working there and how many employees worked there. I told them the amount of people who woked there. I have since found out they were asking about how many people Australia wide worked for Bytecan, not the Adelaide branch.

The information provided to me regarding where/who to send the application to was therfore obviously incorrect.

As a direct result I sent an Application for Unfair Dismissal to the Industrial Relations Commission of South Australia.

Due to unforseen circumstances beyond my control, I have not been able to access my emails until Fri 11/12/14.

On 2/12/14 I was sent a reply from the deputy registrar Mr Peter Kinne at IRC informing me that this was a matter for Fair Work Commission. It also said if I wanted to continue the case with IRC, I had 10 days to reply to him.

My solicitor in this matter, Mr Martin Hynes of Moloney & Partners, informed me to fill in this form and get it back to you today in the hope you can understand this confusion and please allow an extension of time so that this claim can be brought to justice.” 1 (sic)

[3] On 17 December 2014 my Associate corresponded with both Mr Marshall and Bytecan and advised that the extension of time issue would be considered through a telephone conference on 9 January 2015. Substantial information about the extension of time issue was provided to the parties. Mr Marshall was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 2 January 2015. Following a request from Mr Marshall on 5 January 2015 the conference listed for 9 January 2015 was rescheduled for 16 January 2015.

[4] Despite the rescheduling of the conference no further information was received from Mr Marshall. On 15 January 2015 the lawyer nominated as Mr Marshall’s representative in his application provided the following email advice:

“Please note that we are not yet instructed to act for Mr Marshall in this matter.

I gave him some ‘one off’ advice before Christmas and he seems to have taken the liberty of naming me on his application.

He has made an appointment to see me later this afternoon so I may get instructions to act in the matter.”

[5] The Employer’s Response to the application advised that Bytecan objected to an extension of time and objected to the application on the basis that it advised that Mr Marshall resigned his employment.

[6] Mr Marshall participated in the telephone conference. Mr Boulais and Mr James from Bytecan also participated in this conference. 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.

[7] At this conference Mr Marshall confirmed the explanation of the delay contained in his application. He was unable to advise when he made the application to the Industrial Relations Commission of South Australian (IRCSA) but asserted that he made an application having been advised to do so by the IRCSA. He advised that he did not receive the email advice from the IRCSA of 2 December 2014 until a later time because he was undertaking outback work. He could not recall when he returned or became aware of that email.

[8] 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.”

[9] On the information before me I am satisfied that the application was made some 9 days 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.”

[10] Mr Marshall’s reasons for the delay were, firstly, that he lodged an application in the IRCSA by error. I am not persuaded that Mr Marshall is correct in his assertion that the IRCSA told him to lodge his application in that Commission. Mr Marshall’s initial advice was that he was unaware of the advice provided by the IRCSA on 2 December 2014 until 11 December 2014 as a result of difficulties he had in accessing his emails. The advice of 2 December 2014 confirmed that his application had been lodged in the wrong tribunal. Furthermore, I am not satisfied that an adequate explanation for the period from 11 December 2014 to the lodgement of the application on 15 December 2014 has been provided. I have considered the additional advice provided by Mr Marshall at the conference about the reasons for the delay. Mr Marshall’s subsequent inability to explain the dates upon which he became aware that he had lodged his application in the wrong tribunal and the action he subsequently took do not represent an acceptable reason for the delay or an exceptional circumstance. In overall terms, I am not satisfied that Mr Marshall has provided an acceptable reason for the entirety of the period in question such that I should regard this as an exceptional circumstance. It is clear from Mr Marshall’s application that he was aware of the termination of his employment on 10 November 2014 when that employment termination took effect. I accept that, after that employment termination, Mr Marshall pursued his action in the IRCSA and hence sought to challenge the termination of his employment. This is a factor which favours an extension of time. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[11] In terms of the merits of the application, I have noted the Bytecan position that Mr Marshall resigned his employment. If that assertion was established on the evidence, it is unlikely that Mr Marshall’s application would be successful. Notwithstanding this, I have noted that Mr Marshall asserts that this resignation was forced on him and that consequently, the termination of his employment was at the initiative of Bytecan. Information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[13] On balance, I have concluded that the material before me does not establish that Mr Marshall’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR560150) giving effect to this decision will be issued.

Appearances (by telephone):

L Marshall on his own behalf.

D Boulais and P James for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 16.

<Price code C, PR560149>

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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