Mark Wagenaar v Timber Panel Products Pty Ltd

[2015] FWC 3430

[2015] FWC 3430

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Wagenaar
v
Timber Panel Products Pty Ltd
(U2015/4770)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 MAY 2015

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

[1] Mr Wagenaar 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 Australian Timbers Limited T/A Timber Panel Products. At a telephone conference convened on 20 May 2015 I advised that I had concluded, on the material before me, 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 Wagenaar’s application was lodged on 13 April 2015. In that application Mr Wagenaar advised that he was notified of the termination of his employment on 2 December 2014 and that this termination took effect from that day. In his application, Mr Wagenaar asked that the following information taken into account in considering the late lodgement of his application:

“I have not taken any steps prior to this about being made redundant, as I have only recently been informed that the company I was working for has hired a new Sales Representative. This new person now works in the same capacity in which I was working prior to my redundancy. This person has resumed the duties and role I was performing when I left the company, that is, calling on manufacturing accounts, hence my reason for applying for an unfair case to be raised regarding my redundancy.” 1

[3] The Employer’s Response to the application advised that Mr Wagenaar was not employed by Australian Timbers Limited T/A Timber Panel Products but was employed by a different corporate entity, being Timber Panel Products Pty Ltd. Notwithstanding this, information in response to the application was provided. Following advice that Australian Timbers Limited and Timber Panel Products Pty Ltd are related corporate entities, I have amended the application pursuant to s.586 of the FW Act, by agreement with the parties. The Employer’s Response (Form F3) confirmed that the termination of Mr Wagenaar’s employment took effect on 2 December 2014. Accordingly, Timber Panel Products Pty Ltd asserted that the application was lodged out of time. Additionally, Timber Panel Products Pty Ltd asserted that the termination of Mr Wagenaar’s employment was a case of genuine redundancy and that this dismissal was consistent with the Small Business Fair Dismissal Code which had application to it as a small business. The Employer’s Response advised that the position held by Mr Wagenaar had not been replaced and that Mr Wagenaar’s redundancy was a consequence of a downturn in trade.

[4] On 20 April 2015 my Associate corresponded with both Mr Wagenaar and the nominated employer and advised that the extension of time issue would be considered through a telephone conference on 20 May 2015. Substantial information about the extension of time issue was provided to the parties. Mr Wagenaar was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 13 May 2015.

[5] Further information was received from Mr Wagenaar on 8 May 2015 when he provided advice in which he confirmed his employment commencement arrangements and his assessment of the events that led to the termination of his employment. In this advice Mr Wagenaar acknowledged that he was advised that the termination of his employment was as a consequence of redundancy. He detailed his reservations about the extent to which it was truly based on a redundancy situation and advised that “In or around March 2015 it came to my attention that TPP had employed a new Manufacturing Account Manager on 17 February 2015”. 2 Mr Wagenaar then detailed the reasons why he considered the termination of his employment to be harsh, unjust or unreasonable.

[6] Mr Wagenaar participated in the telephone conference. Mr Otto represented Timber Panel Products Pty Ltd in the conference.

[7] 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.

[8] 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.”

[9] I have concluded that the application was made some 111 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 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.”

[10] Mr Wagenaar’s reasons for the delay go to the extent to which he asserts that the termination of his employment was not a genuine redundancy and that he only became aware of this in March 2015. The information provided by Mr Wagenaar details concerns which he had at the time of the termination of his employment. Notwithstanding what he described as “suspicions”, Mr Wagenaar did not act to pursue this application for nearly four months. To the extent that Mr Wagenaar asserts that his health prevented him from lodging this application, evidence to substantiate this has not been established to me. To the extent that Mr Wagenaar explains the delay on the basis that he was seeking other employment, this is not an acceptable reason for the delay. Consequently, I am not satisfied that Mr Wagenaar has established that the reasons for the delay represent circumstances which should be regarded as realistic or exceptional for the purposes of an extension of time. I am simply not satisfied that Mr Wagenaar has established any acceptable reason why it is that he could not have pursued concerns about the termination of his employment within the 21 day time limit.

[11] I am not satisfied that, apart from the late lodgement of this application, Mr Wagenaar pursued other actions so as to challenge the termination of employment. I consider that an extension of time of this magnitude would prejudice Timber Panel Products Pty Ltd and that this goes against an extension of time.

[12] The limited material before me relative to the merits of the application gives rise to significant doubt that the merits of Mr Wagenaar’s position are sustainable. If Timber Panel Products establishes that, at the time of the termination of Mr Wagenaar’s employment it was a small business, I consider that the combination of the genuine redundancy circumstances and the operation of the Small Business Fair Dismissal Code mean that the merits of Mr Wagenaar’s application would not support an extension of time. However, because information which would enable a definitive conclusion is not before me, I have not regarded the merits of the application as a determinative factor relative to the extension of time issue.

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

[14] Accordingly I have concluded that the material before me does not establish that Mr Wagenaar’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 (PR567563) giving effect to this decision will be issued.

Appearances (by telephone):

M Wagenaar on his own behalf.

D Otto for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 20.

 1   Form F2, para 1.4

 2   Statement of 8 May 2015, para 34

 3   [2011] FWAFB 975

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<Price code C, PR567562>