Martin Pascoe v Aboriginal Legal Rights Movement Inc

[2014] FWC 7827

[2014] FWC 7827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martin Pascoe
v
Aboriginal Legal Rights Movement Inc
(U2014/11314)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 NOVEMBER 2014

Application for relief from unfair dismissal - extension of time.

[1] On 30 July 2014 Mr Pascoe lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) through which he sought relief with respect to the termination of his employment with the Aboriginal Legal Rights Movement Inc (the ALRM). The application was lodged one day outside of the 21 day time limit specified in s.394(2). The ALRM objected to the application proceeding on the basis that it was lodged outside of this time limit and asserted that the termination of Mr Pascoe’s employment was a genuine redundancy consistent with s.389 of the FW Act such that it could not be unfair.

[2] These preliminary issues were referred to me for determination. On 31 October 2014 ALRM advised that it was no longer asserting that the termination of Mr Pascoe’s employment met the definition of a genuine redundancy set out in s.389 such that this objection to the application was the longer pursued. The extension of time issue was the subject of a hearing in Adelaide on 3 November 2014. At this hearing Mr Pascoe was represented by Mr Wearing, of counsel and ALRM by Mr Manuel, of counsel. Grants of permission were made in both instances pursuant to s.596(2)(a) of the FW Act.

[3] In reaching a decision relative to the extension of time issue I have taken into account the evidence of Mr Pascoe and that of Mr Bourne, of counsel who initially represented Mr Pascoe and who lodged the application.

[4] Mr Pascoe worked for ALRM from September 2013. He was engaged under the terms of a contract with a specified end date of 30 June 2015, subject to his completion of a probationary employment period. He completed that probationary employment period. Mr Pascoe’s employment was terminated on 8 July 2014 when he was advised that his position had been made redundant. I note that the parties are in dispute over the circumstances and basis for that employment termination.

[5] Mr Pascoe attended Mr Bourne’s office on 9 July 2014. His evidence was that he instructed Mr Bourne to lodge an unfair dismissal application. Mr Bourne’s evidence was that he “probably advised Mr Pascoe of the 21 day time limit”. 1 I note that Mr Pascoe does not recall advice of that nature being given to him. On 14 July 2014 Mr Bourne delivered a letter to ALRM seeking Mr Pascoe’s reinstatement. ALRM responded to that matter on 15 July 2014. It refused that request.

[6] Mr Pascoe’s evidence was that, on 16 July 2014 he received formal written advice of the termination of his employment, dated 8 July 2014. His evidence was that soon after he received that correspondence, he telephoned Mr Bourne’s office and spoke with a receptionist about the progress of his application. Whilst Mr Pascoe’s recollection of the discussion was vague, he understood that the matter was being addressed. Mr Bourne’s evidence was that he understood that Mr Pascoe came into his office and spoke with a receptionist regarding progress of the matter at some time during the 21 days after the termination of his employment.

[7] Mr Bourne confirmed that the lodgement of the application one day outside of the 21 day time limit reflected a miscalculation on his part and an oversight.

[8] Mr Pascoe’s evidence was that he received, from Mr Bourne on or around 31 July 2014, copies of the correspondence between Mr Bourne and ALRM. After receiving that correspondence, Mr Pascoe emailed Mr Bourne on 31 July 2014, disputing the ALRM characterisation of his dismissal and confirming that he hoped the matter was proceeding.

The Submissions

[9] Mr Pascoe asserts that the extension of time request meets the requirements necessary for characterisation as an exceptional circumstance such that it should be granted.

[10] The ALRM argues that, while the delay was caused by Mr Bourne, Mr Pascoe’s behaviour could only be described as passive and that he had not taken the necessary actions to meet the requirements for an exceptional circumstance.

Findings

[11] Section 394(3) states:

“394 Application for unfair dismissal remedy

....

(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.”

[12] I have considered these factors in the circumstances of Mr Pascoe’s application.

[13] In Nulty v Blue Star Group Pty Ltd 2 a Full Bench 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.”

[14] I have applied this approach.

[15] I am satisfied that the delay arose from an error on the part of Mr Bourne. On the material before me I am satisfied that Mr Pascoe acted quickly to pursue the matter and that, albeit in a somewhat rudimentary manner, he checked with Mr Bourne’s office as to the standing of the matter during the 21 day period. Further, when Mr Pascoe was made aware of the ALRM response to Mr Bourne’s letter seeking reinstatement, he again confirmed his instructions. I have concluded that he did that without knowing that this application had been lodged the day before.

[16] I have concluded that Mr Pascoe was sufficiently active in pursuing his application such that Mr Bourne’s error as his representative should not be visited upon him. In this respect I have adopted the Full Bench position in Robinson v Interstate Transport Pty Ltd 3 in the following terms:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.””

[17] Mr Pascoe became aware of the termination of his employment on the day upon which it took effect. He acted promptly to seek Mr Bourne’s assistance.

[18] There is no dispute that, apart from the extension of time itself, the one-day delay does not represent prejudice to the ALRM.

[19] In terms of the merits of the application, the information before me does not establish that the application is without merit. That information does not, however, enable any proper assessment of the merits. Accordingly, I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

[20] I am satisfied that the positions adopted by the Fair Work Commission relative to other comparable situations support both the refusal or an endorsement of the extension of time request but, in the majority of cases, directly comparable situations would favour the granting of an extension of time.

Conclusion

[21] For the reasons I have set out above, I am satisfied that Mr Pascoe’s circumstances meet the significant test necessary to be described as exceptional such that the extension of time will be granted in this instance. An Order (PR557376) reflecting this conclusion will be issued and the application will be listed for consideration of the merits. In the interim period, the parties will have an opportunity to access the Fair Work Commission telephone conciliation function.

SENIOR DEPUTY PRESIDENT

Appearances:

J Wearing counsel for the Applicant.

R Manuel counsel for the Respondent.

Hearing details:

2014.

Adelaide:

November 3.

 1   Transcript, sound recording, 3 November 2014, 10.12 am

 2   [2011] FWAFB 975

 3   [2011] FWAFB 2728

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