Lorenzo Cuzman v Peter Cochrane Management Pty Ltd T/A Peter Cochrane Transport

[2014] FWC 8666

[2014] FWC 8666

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lorenzo Cuzman
v
Peter Cochrane Management Pty Ltd T/A Peter Cochrane Transport
(U2014/14993)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 2 DECEMBER 2014

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

[1] Mr Cuzman has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the alleged termination of his employment with Peter Cochrane Transport Pty Ltd (Peter Cochrane Transport). At a telephone conference convened on 1 December 2014 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 Cuzman’s application was lodged on 11 November 2014. In that application Mr Cuzman asserted that he was an employee and that his employment was terminated with effect from 25 June 2014. Mr Cuzman asked the Fair Work Commission (the FWC) consider the following information in deciding whether to accept his application out of time:

“I did not make this application within 21 calendar day’s, was because I went into a depression after being let go from my job. I did not leave the house for many day’s, It took me a long time to start making the step’s to start moving forward with my life.” 1 (sic)

[3] On 13 November 2014 my Associate corresponded with both Mr Cuzman and Peter Cochrane Transport and advised that the extension of time issue would be considered through a telephone conference on 1 December 2014. Substantial information about the extension of time issue was provided to the parties. Mr Cuzman was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 24 November 2014. He was advised that:

“You bear the responsibility for demonstrating that an extension of time should be granted, or, in the alternative, is not required. If you fail to comply with these instructions, the Senior Deputy President may determine the matter on the material before him.” 2

[4] No further information was received from Mr Cuzman.

[5] The Employer’s Response to the application recorded its objection to an extension of time and its objection to the application on the basis that Peter Cochrane Transport asserted that Mr Cuzman was an independent contractor rather than an employee. Peter Cochrane Transport sought and that these issues were determined at the outset.

[6] Mr Cuzman belatedly participated in the telephone conference on 1 December 2014. He agreed that he had not provided any information consistent with my directions but was nevertheless given an opportunity to address the circumstances which were associated with the late lodgement of the application. Ms Welyhorskyj, of counsel represented Peter Cochrane Transport pursuant to a grant of permission made under s.596(2)(a). My conclusions about the extension of time issue were reached on the basis of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made 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 3 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.”

[9] Mr Cuzman’s stated reason for the delay was that after the termination of his employment he was depressed. He has not provided any evidence which establishes that he was unable to pursue the matter at an earlier time. Whilst Mr Cuzman has advised that he has been seeing a psychologist, no evidence that establishes his inability to act at an earlier time is before me. It is clear from Mr Cuzman’s application that he was aware of the termination of the arrangement under which he worked on 25 June 2014 and that this termination took effect from that date. Apart from advice from him that he enquired about a bullying application, there is no material before me which establishes any action taken by Mr Cuzman other than the late lodgement of this application. I have concluded that an extension of time of this magnitude would prejudice Peter Cochrane Transport.

[10] In terms of the merits of the application, I have noted the Peter Cochrane Transport position that Mr Cuzman was an independent contractor and was not an employee. Notwithstanding this, 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.

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

[12] Accordingly I have concluded that the material before me does not establish that Mr Cuzman’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 (PR558486) giving effect to this decision will be issued.

Appearances (by telephone):

L Cuzman on his own behalf.

E Welyhorskyj counsel for the respondent.

Hearing (Conference) details:

2014.

Adelaide:

December 1.

 1   Form F2, para 1.4

 2   FWC correspondence dated 13 November 2014, para 8.

 3   [2011] FWAFB 975

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