Logan Powell v Truck Centre WA Pty Ltd

[2016] FWC 6327

[2016] FWC 6327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Logan Powell
v
Truck Centre WA Pty Ltd
(U2016/10058)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 SEPTEMBER 2016

Application for relief from unfair dismissal – extension of time refused.

[1] Mr Powell 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 Truck Centre WA Pty Ltd (Truck Centre).

[2] Mr Powell’s application was lodged on 8 August 2016. In that application Mr Powell advised that the termination of his employment took effect on 15 July 2016 and that he was advised of that dismissal on the same day. Mr Powell acknowledged that his application was not made within 21 days of his dismissal taking effect. In his application he stated:

“I had not received my letter of termination until 27th July 2016. As such has taken time to correctly fill out this application.” 1

[3] On 9 August 2016 the Fair Work Commission (FWC) Registry acknowledged receipt of the application and the matter was listed for conciliation before a FWC Conciliator on 8 September 2016. On 15 August 2016 Truck Centre provided an Employer’s Response (F3) in which it advised of its objection to the application based on the ground that the application was made out of time. Truck Centre also advised that the termination of Mr Powell’s employment took effect on 15 July 2016. On 23 August 2016, Truck Centre confirmed that it did not wish to participate in the conciliation process and sought that the matter proceed directly to a hearing on the extension of time issue.

[4] On 24 August 2016 my Associate corresponded with both Mr Powell and Truck Centre and advised that the extension of time issue would be considered through a telephone conference on 12 September 2016. Substantial information about the extension of time issue was provided to the parties. Mr Powell was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by close of business on Friday 2 September 2016.

[5] On 2 September 2016 Mr Powell provided a Position Statement relative to the Extension of Time objection, as follows:

“In response to the extension of time and the rejection of Conciliation by my former employer; on the grounds that my application was submitted to the Commission more than 21 days after termination. I formally request my extension of time and the delay of 1 day in my application being submitted to the Commission.

Referring to the timeline of events for my application; of which I will go through more at my hearing, the actual alleged termination date of the 15th July (refer Termination Letter) is not when Truck Centre WA (TCWA) formally confirmed my termination of employment. The date of the 15th of July is when TCWA sat me down and said they intended to terminate my employment if I did not resign; as per my statement and the reply by TCWA to the Commission is that they gave me the weekend to think about resigning. I can confirm, as per my phone records, that I made a call to Amy on Wednesday 20th July which is when she informed me that my employment had been terminated as I did not wish to resign my position. This letter is pre-dated back to a conversation that was had between myself, Amy and the Workshop Manager of TCWA as per the above. Whilst I can confirm that I received my actual termination letter incorrectly dated from TCWA on Wednesday 27th July 2016, I cannot prove with hard evidence by way of the envelope the letter was received in, which would show a postal date. I therefore request that TCWA prove that the letter of termination was in fact sent by them through Australia Post on the 15th July 2016 to which I believe they cannot. My telephone records as above will indicate this was not the case. I therefore request the commission grant my extension of time and proceed to a formal hearing based on my official termination date being the 20th July 2016; that being the earliest contact I had with Amy from TCWA advising me of their decision to terminate my employment.

I have attached photo evidence of my outgoing call on the 20th July 2016 with Amy.”

[6] Mr Powell participated in the telephone conference on 13 July 2016 together with a support person, Mr Patrucco. Ms Hawkridge and Mr Sullivan from Truck Centre also participated in this conference.

[7] My conclusions about the extension of time issue were reached on the basis of all of the information before me.

[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] In the conference on 12 September 2016 Mr Powell confirmed that he was advised, on Friday 15 July 2016, that he was dismissed, but asserted that he was given the opportunity to resign. He advised that he was told that he could consider his position over the forthcoming weekend and request that the termination of his employment be considered to be a resignation on the following Monday. Mr Powell confirmed that he did not telephone Truck Centre until Wednesday 20 July and that the termination of his employment was then confirmed. Mr Powell confirmed that, as of that date, he was aware of the capacity to make this application and the 21 day time limit.

[10] Mr Powell advised that, after he was advised of his dismissal he waited for written confirmation of his dismissal, which he received on 27 July 2016. Mr Powell advised that he then spent the time from 27 July to 8 August 2016 finalising this application.

[11] Ms Hawkridge and Mr Sullivan were present in the interview with Mr Powell on 15 July 2016. They both confirmed that Mr Powell was advised that he was being dismissed from that day and with the payment of four week’s pay in lieu of notice. Both Ms Hawkridge and Mr Sullivan advised that Mr Powell had been given time over the following weekend to decide if he wished to have that employment termination characterised as a resignation but that, when he did not provide that advice, the employment termination proceeded consistent with the discussion on 15 July 2016.

[12] I have concluded that the termination of Mr Powell’s employment took effect on 15 July 2016 and that he was made aware of this on that same day. The information before me confirms that, at the termination interview, Mr Powell was clearly made aware that he was dismissed. He took some of his tools home with him on that day and attended the workplace again on 17 July 2016 to remove the remainder of his tools. Those actions were absolutely consistent with Mr Powell’s knowledge that his employment had been terminated. I have concluded that Mr Powell was given the opportunity to have the termination of his employment characterised as a resignation and that it was in this context that he spoke with Truck Centre some days later, and well after the time that he was provided, in order to seek to characterise his dismissal as a resignation. That opportunity to characterise his dismissal as a resignation and his subsequent discussion did not alter the reality of his dismissal, and his awareness of that dismissal on 15 July 2016. Consequently, the application was made three 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 Ltd² 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.”

[13] Mr Powell has not demonstrated to me an acceptable reason for the delay, or a reason which could be regarded as an exceptional circumstance. His proposition that he was not aware of the termination of his employment until this was confirmed on 20 July 2016 is not only inconsistent with the advice in his application but is also inconsistent with his own version of events. To the extent that Mr Powell explains the delay on the basis that he was awaiting receipt of the formal termination of employment letter, this does not adequately explain the delay, nor establish an exceptional circumstance. The information before me does not provide any basis for the delay.

[14] I have concluded that Mr Powell was aware of the termination of his employment on the day on which it took effect.

[15] Apart from this belated application, I am not satisfied that Mr Powell took any other significant action to dispute the termination of his employment.

[16] I do not think that the delay in this instance would prejudice Truck Centre but I do not consider that this represents a basis for an extension of time in the absence of an appropriate reason for the delay.

[17] The information before me does not enable an assessment of the merits of the application. Consequently, I have regarded the merits of the application as a neutral consideration in relation to the extension of time issue.

[18] Considerations of fairness relative to persons in similar situations as Mr Powell do not generally support an extension of time.

Conclusion

[19] I am not satisfied that Mr Powell’s circumstances are exceptional. Accordingly, his request for an extension of time must be refused and his application dismissed. An Order (PR585037) to this effect will be issued.

Appearances (by telephone):

D Patrucco and L Powell on his own behalf.

A Hawkridge and T Sullivan for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

September 12.

 1   Form F2, para 1.4

2 [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR585036>