Luke Browne v Shelly Beach Golf Club

[2017] FWC 2560

[2017] FWC 2560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Browne
v
Shelly Beach Golf Club
(U2017/754)

DEPUTY PRESIDENT DEAN SYDNEY, 10 MAY 2017

Application for an unfair dismissal remedy – extension of time.

[1] Mr Browne was employed by Shelly Beach Golf Club (the Club) until he was notified of his dismissal on 3 January 2017, with immediate effect.

[2] On 25 January 2017 Mr Browne filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act). Given that Mr Browne’s dismissal took effect on 3 January 2017, his application was made one day outside the 21 day period prescribed by s.394(2) of the Act.

[3] The Club opposed Mr Browne’s application for an extension of time but requested the matter proceed to conciliation prior to the determination of the extension of time issue. Mr Browne rejected conciliation prior to his extension of time application being considered. The parties provided written submissions and agreed that the extension of time issue be determined ‘on the papers’.

[4] Section 394(3) of the Act provides:

(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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 2. That consideration does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for a delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances3. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic4, the Full Bench explained the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[9] Mr Browne’s written submissions were brief and he relied on family reasons as the sole reason for the delay. He submits that he had to travel to Queensland with his family on 5 January 2017 to see his grandmother who was admitted to a hospital earlier that day. Mr Browne said that he returned home during the afternoon of 11 January 2017.

[10] The Club contended that Mr Browne’s application filed on 25 January 2017 was made some 13 days after he returned from Brisbane and that if Mr Browne was serious about making a claim for unfair dismissal he would have had the diligence to make the application on time.

[11] On the limited material before me, I am not satisfied that Mr Browne has provided any reasonable explanation for the delay in making his application until 25 January 2017. There were no submissions from Mr Browne as to why he was unable to lodge the application during the period 12 January to 24 January 2017 after he returned from Queensland. I find that this weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[12] The parties are not in dispute that Mr Browne was advised of his dismissal on 3 January 2017. I therefore find this factor to be a neutral consideration.

Any action taken by the person to dispute the dismissal

[13] There is nothing to suggest that Mr Browne took any action to dispute his dismissal until the present application was lodged. I find that this weighs against a conclusion that there are exceptional circumstances.

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

[14] I am not persuaded that granting an extension of time in this case would result in any prejudice to the Club. A lack of prejudice is an insufficient basis alone to grant an extension of time. I therefore find it to be a neutral consideration.

The merits of the application

[15] For the purpose of determining whether to grant an extension of time for Mr Browne to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁵

[16] On the material before me, I am unable to make a final determination of the merits in this matter. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[17] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’7

[18] I do not consider that there are other relevant persons in a similar position to Mr Browne, and I therefore find it to be a neutral consideration.

Conclusion

[19] Having considered all of the matters to which my attention is directed by the Act, together with submissions from the parties, I find that there are no exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of Mr Browne are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application is dismissed.

[20] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 4   [2016] FWCFB 349 at [31].

5 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 6   [2015] FWC 8885.

 7 Ibid at [29].

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