Marc Van Soest v OneSteel Manufacturing Pty Ltd

[2016] FWC 5463

[2016] FWC 5463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marc Van Soest
v
OneSteel Manufacturing Pty Ltd
(U2016/8116)

COMMISSIONER PLATT ADELAIDE, 5 AUGUST 2016

Application for extension of time - exceptional circumstances - extension of time granted.

Background

[1] On 1 July 2016, Mr Van Soest lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by OneSteel Manufacturing Pty Ltd T/A Arrium Mining (Arrium).

[2] In his application, Mr Van Soest advised that the termination of his employment took effect on 3 June 2016 and that he was notified of his dismissal on that day.

[3] On the information before me, I am satisfied that the application was filed some 6 days after the 21 day time limit for the lodgement of unfair dismissal applications and therefore, can only be pursued if this time limit is extended. The reason for why I have determined the application is 6 days late and not 7 is that the Australia Post tracking information reveals that the item reached the Commission’s post office box on 30 June 2016, after the Commission collected the post.

[4] On 13 July 2016, my Associate corresponded with both Mr Van Soest and Arrium and advised that the extension of time issue would be considered at a telephone conference on 4 August 2016. Substantial information about the extension of time issue was provided to the parties. Mr Van Soest was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 22 July 2016.

[5] On 21 July 2016, Mr Van Soest advised that:

“I filled in the application and posted in an express post envelope on the 22nd June. I was under the impression that I had until the 24th of June to lodge my application as I was dismissed on 3rd of June. The reason I left the application this late was that I was trying to get more information as to whether my dismissal was in fact unfair.”

[6] Arrium provided a Form F3 Employer Response on 27 July 2016 and its representative provided written submissions on 2 August 2016. The submission went to the issue of merit.

[7] Mr Van Soest participated in the telephone conference. Ms Grant from the Australian Industry Group represented Arrium. The conference was recorded.

[8] The portions of the Mr Van Soest’s submissions relevant to the out of time considerations can be summarised as follows:

● his employment was terminated in person on 3 June 2016;

● the application was prepared on 22 June 2016;

● on 23 June 2016 (and not 22 June 2016 as originally advised), he purchased the Express Post envelope in Whyalla and posted it in a post box on that day, believing that it would be received in Adelaide the next day and thus within the time allowed for making the application; and

● in the period between the dismissal and the lodgement, Mr Van Soest spoke with a number of persons to try and determine whether the dismissal was unfair. Mr Van Soest did not contact Arrium.

[9] Onesteel did not take a position as to the extension of time application.

The law to be applied

[10] Pursuant to s.394(2) of the Act an unfair dismissal 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).”

[11] Section 394(3) of the Act provides that the Commission may allow a further period for the making of the application if it is satisfied 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.”

Consideration – “exceptional circumstances”

[12] The meaning of “exceptional circumstances” has been considered in a number of decisions of the Commission. 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 1 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] I now consider the matter by reference to s.394(3) of the Act.

(a) the reason for the delay

[14] Mr Van Soest advised that he attended the Whyalla post office on 23 June 2016 and purchased the Express Post envelope, which correlates with the date stamped on the back of the Express Post envelope received by the Commission. Mr Van Soest then posted the envelope in an Express Post box, expecting it to arrive in Adelaide on 24 June 2016.

[15] The Australia Post Express Post envelope guarantees next day delivery, with the following caveat:

“Delivery is guaranteed to occur the next business day only within the Express Post network. View information about the Express Post network and delivery online

[16] The Australia Post website further provides that:

“If your item is for an address outside the Express Post network, we’ll use the fastest possible transport links, but it won’t be covered by our Next Day Guarantee.”

[17] A review of the Australia Post website indicates that only South Australian postcodes 5000 to 5199 and 5800 to 5999 are subject to the next day delivery guarantee. Whyalla which has a postcode of 5600 falls outside of the next day delivery network.

[18] Another page on the Australia Post website provides a “delivery calculator” allowing the user to insert two post codes and determine the delivery times of various Australia Post mailing services. When 5000 (Adelaide) and 5600 are entered into the calculator, the calculator provides that “next business day*” delivery can be expected with the use of the Express Post Envelope. The “*” referring to the fine print which states:

“Next business day delivery is only available within the Express Post next business day delivery network, when lodged over the counter at a Post Office, or in a yellow street posting box.”

[19] Further confusing the matter, the Whyalla post office sells Express Post envelopes and there are two Express Post boxes in the Whyalla area.

[20] In Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home 2the Full Bench considered an application for an unfair dismissal that was lodged out of time, after Australia Post failed to deliver in line with it next day guarantee for Express Post envelopes.

[21] At first instance, the application was dismissed on the basis that the Commissioner did not consider postal delays to constitute exceptional circumstances. On appeal however, the Full Bench held that adequate weight had not been given to Australia Post’s next day service delivery guarantee. Indicating that:

“…the words on the “Express Post” envelope suggest Australia Post is guaranteeing that it will be delivered the next business day to the address put on the envelope by the sender. The only relevant caveat on the “Express Post” envelope being in respect of the delivery address and sender’s details, the posting times and the posting outlet or box. Having regard to the wording on the “Express Post” envelope, we think it is reasonable to rely on the guarantee suggested by it, subject to meeting the other caveats on the envelope to which we have referred.” 3

[22] In dealing with the reason for the delay, the Full Bench stated:

“The operative reason for the delay of one day in Ms Leung making her UDR application was that Australia Post failed to deliver to the FWC the “Express Post” envelope containing her UDR application in accordance with the guarantee of next business day delivery suggested on the envelope. The failure to deliver the “Express Post” envelope in accordance with that guarantee appears to have been caused by the diversion of the express post item from the valid street address given on the envelope to another determined by Australia Post. We consider in the circumstances that it was reasonable to rely on the guaranteed delivery period suggested on the “Express Post” envelope. Ms Leung has therefore provided an acceptable reason for the delay.”  4

[24] Concluding that:

“Taking the above matters under s.394(3) (a) to (f) of the FW Act into account, we are satisfied that Australia Post’s failure to deliver to the FWC the “Express Post” envelope containing Ms Leung’s UDR application in accordance with the guarantee of next business day delivery suggested on the envelope, in the context of our findings on the other matters in s.394(3), constitute exceptional circumstances.

It is therefore necessary for us to consider whether we should exercise our discretion under s.394(3) in favour of allowing of Ms Leung a further period for the making of her UDR application. Since Ms Leung’s UDR application would have been made to the FWC within time but for Australia Post’s failure and the matters telling against allowing the extension of time are limited, we have concluded we should allow Ms Leung a further period for the making of her UDR application to the date was made, being 7 October 2014.” 5

[23] In Scott Yeoman v the Trustee for Fuelcraft Unit Trust T/A Liquip Victoria, 6 Commissioner Gregory allowed an extension of time for an application lodged one day after the 21 day time period, after Australia Post failed to deliver the applicant’s Express Post envelope within the terms of the guaranteed next day service delivery. Commissioner Gregory, in conclusion stated:

“On one view delays attributed to the postal service might not be considered an unusual occurrence. However, based on the Full Bench decision in Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as Online Chinese Nursing Home, to which I have referred, and the similarity of the circumstances to this matter, I consider I am bound to follow the conclusions reached in that decision by the Full Bench.” 7

[24] Each decision turns to a particular set of facts. Both Leung and Yeoman, involved cases where the applicant had sent their applications with Express Post envelopes but were one day out of time. In Leung, the application posted from within the guaranteed next day delivery zone however, with an incorrectly addressed envelope.

[25] While the matter before me involves a situation where the applicant is outside the delivery zone and at least 6 days late, consideration must be given for the fact that the Whyalla Post Office sells Express Post envelopes, there are two Express Post boxes in the area and the information provided on the Express Post envelope, website, and in the fine print on the bottom of the calculator page, is inconsistent with the delivery dates indicated with the use of the online calculator. This consideration therefore, weighs in favour of an extension of time.

(a) whether the person became aware of the dismissal after it had taken effect

[26] It is not in dispute that Mr Van Soest became aware of his dismissal in the meeting on 3 June 2016. This is a neutral consideration.

(a) any action taken by the person to dispute the dismissal

[27] Mr Van Soest submitted that he contested the dismissal by discussing the termination with his friends. I do not find that his discussion of the matter with friends was to a step taken contest his dismissal.

[28] The only step taken by Van Soest to contest the dismissal was Mr Van Soest completing the application two days prior to the end of the 21 day time limit for lodging applications. This consideration weighs against an extension of time.

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

[29] There is no argument that an extension of time would prejudice Arrium, further Arrium have not objected to an extension of time being granted in this case. I regard this as a neutral consideration.

(a) the merits of the application

[30] I have noted the information that Mr Van Soest and Arrium has provided. As the evidence in support of each party’s contentions is unable to be tested, I have regarded the merits of the application as a neutral consideration.

(a) fairness between the persons and other persons in a similar position

[31] Neither party have indicated that fairness is a consideration of particular importance in the present matter and therefore, I regard it as a neutral consideration.

Conclusion

[32] Previous decisions of the Commission have emphasised the fact that compliance with the 21 day time limit is a legislative provision, not merely a technical requirement, and that the discretion to extension this time limit can only be granted in exceptional circumstances.

[33] The case before me represents “exceptional circumstances” whereby the inconsistent information provided by Australia Post coupled, with the Full Bench’s treatment of the next day guarantee in Leung, and Mr Van Soest’s belief, that the next day service was available, which I find reasonable in the circumstances, favour the granting of an extension of time. I have therefore, decided that Mr Van Soest should be allowed a further period in which to make his unfair dismissal application, being to 1 July 2016, when the application was formally received by the Commission. An order 8 giving effect to this will be issued in conjunction with this this decision.

COMMISSIONER

Appearances:

M Van Soest on his own behalf.

E Grant of the Australian Industry Group on behalf of the Respondent.

 1   [2011] FWAFB 975.

 2   [2015] FWCFB 2106.

 3   [2015] FWCFB 2106 at [24].

 4  [2015] FWCFB 2106 at [29].

 5   [2015] FWCFB 2106 at [40] – [41].

 6   [2016] FWC 629.

 7   [2016] FWC 629 at [33].

 8   PR583873.

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