Mark Rudduck v York Carpets

[2015] FWC 4757

[2015] FWC 4757

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Rudduck
v
York Carpets
(U2015/8314)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 JULY 2015

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

[1] Mr Rudduck 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 York Carpets and Coverings (York). At a telephone conference convened on 15 July 2015 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 Rudduck's application was lodged on 10 June 2015. In that application Mr Rudduck advised his employment was terminated with effect from 15 May 2014. Mr Rudduck advised that he considered his application was lodged within the statutory 21 day time limit. I note that he dated and signed the application 1 June 2015

[3] On 19 June 2015 my Associate corresponded with both Mr Rudduck and York and advised that the extension of time issue would be considered through a telephone conference on 15 July 2015. Substantial information about the extension of time issue was provided to the parties. Mr Rudduck was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 8 July 2015.

[4] Additional information was received from Mr Rudduck in the following terms:

“1) In the past two years I have formed a strong friendship between Bret Stubberfield & Carlin Whitehead. So I found it very difficult to lodge the application.

2) I am having trouble with what is the fairest and best way to deal with this situation.

3) After the dismissal Bret and Stephanie Stubberfield had two week’s holiday and I was unable to discuss any relevant matters with Bret.” 1

[5] The Employer’s Response to the application advised that:

“…. Mark was given verbal notice on Friday 15th May and was given two weeks paid time off to find other employment. His paid employment ceased on Friday, 29th May 2015.”

[6] Accordingly, York did not object to the application on the basis that it was lodged outside of the 21 day time limit. However, it objected to the application on the basis that it was a small business and it asserted that the termination of Mr Rudduck’s employment was a case of genuine redundancy.

[7] Mr Rudduck participated in the telephone conference. Mr Stubberfield from York also participated in this conference. The parties provided additional information about the arrangements for the termination of Mr Rudduck’s employment.

[8] Mr Stubberfield advised that, on 15 May 2015 he advised Mr Rudduck that his employment was terminated, but that he paid him a further two weeks pay. Both parties agreed that Mr Rudduck was not employed after 15 May 2015. The two weeks payment made to him soon after 15 May 2015 was not regarded as any form of leave. I have concluded that the payment of two weeks pay after 15 May 2015 reflected a payment in lieu of notice and that the termination of Mr Rudduck’s employment took effect on 15 May 2015.

[9] 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.

[10] 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.”

[11] On the information before me I am satisfied that the application was made some five 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 2 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.”

[12] Mr Rudduck's reasons for delay relate, firstly, to his concern about lodging the application given the relationship he had with the York proprietors. Secondly, he advised that after he was advised of the termination of his employment on 15 May 2015, Mr and Ms Stubberfield had two weeks holiday such that he was unable to discuss his employment termination with them. I am not satisfied that either of the reasons for the delay are indicative of exceptional circumstances. It is clear from Mr Rudduck's application that he was aware of the termination of his employment on the day it took effect. Apart from the late lodgement of this application, Mr Rudduck did not pursue other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice York but this, of itself, does not provide a basis for an extension of time.

[13] In terms of the merits of the application, if York establishes that the termination of Mr Rudduck’s employment was a case of genuine redundancy, the application must be unsuccessful. On the basis of the Small Business Fair Dismissal Code Checklist attached to the Employers Response, I doubt that the Small Business Fair Dismissal Code is going to be particularly relevant to this matter. Notwithstanding this, information which enables a definitive conclusion on the merits of the application is not before me and I have elected to regard this as a neutral factor in relation to the consideration of the extension of time issue.

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

[15] Accordingly I have concluded that the material before me does not establish that Mr Rudduck'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 (PR569376) giving effect to this decision will be issued.

Appearances (by telephone):

M Rudduck on his own behalf.

B Stubberfield representing the respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 15.

 1   Applicant submission received 1 July, 2015

 2   [2011] FWAFB 975

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<Price code C, PR569375>