Mark Fox v Mont Agricultural Development Pty Ltd T/A Cornucopia Hotel

[2016] FWC 9151

[2016] FWC 9151

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Fox
v
Mont Agricultural Development Pty Ltd T/A Cornucopia Hotel
(U2016/12522)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 DECEMBER 2016

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

[1] Mr Fox 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 Mont Agricultural Development Pty Ltd T/A Cornucopia Hotel (Cornucopia Hotel). At a telephone conference convened on 21 December 2016 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 Fox’s application was lodged on 14 October 2016. In that application Mr Fox advised his employment commenced on 3 July 2015 and was terminated with effect from 27 September 2016. He advised that the application was lodged within the 21 day time limit.

[3] The Employer’s Response to the application (the Form F3) advised that Mr Fox had two periods of employment as a casual employee. The first period of employment was from 3 July 2015 to 31 December 2015. The second period of employment was from 4 July 2016 to 7 August 2016. The Form F3 objected to the application on the following initial grounds:

● the application was made outside of the statutory time limit and any extension of that time limit was opposed,

● Mr Fox had not completed the requisite minimum employment period, and

● Cornucopia Hotel was, at the relevant time, a small business and the termination of Mr Fox’s employment was consistent with the Small Business Fair Dismissal Code.

[4] I note that attachments to this Form F3 went to support the employer’s contentions with respect to the duration of Mr Fox’s employment.

[5] Mr Fox’s application was the subject of a telephone conciliation conference on 29 November 2016. This conference did not resolve the application and was referred to me for determination of the extension of time issue.
[6] On 8 December 2016 my Associate corresponded with both Mr Fox and Cornucopia Hotel and advised that the extension of time issue would be considered through a telephone conference on 21 December 2016. Substantial information about the extension of time issue was provided to the parties. Mr Fox was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 16 December 2016.

[7] No information was received from Mr Fox. An email reminder was sent to Mr Fox on 19 December 2016.

[8] Mr Fox did not participate in the telephone conference. Mr Warming, from Cornucopia Hotel 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.

[9] 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.”

[10] On the information before me I have concluded that the termination of Mr Fox’s employment took effect on 16 August 2016. I am therefore satisfied that the application was made some 38 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 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.”

[11] No reasons for the delay have been provided to me.

[12] On the information before me, I think it most likely that Mr Fox was aware of the termination of his employment on very near to the day it took effect.

[13] I do not consider 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.

[14] In terms of the merits of the application, the information before me indicate that Mr Fox had not completed the requisite minimum employment period and, as a consequence would not be able to pursue his application in any event. This does not favour an extension of time.

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

[16] Accordingly I have concluded that the material before me does not establish that Mr Fox’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 (PR588839) giving effect to this decision will be issued.

Appearances (by telephone):

N Warming for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

December 21.

 1   [2011] FWAFB 975

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<Price code C, PR588838>