Mason Skinner v JJC Electrics Pty Ltd
[2015] FWC 4338
•26 JUNE 2015
| [2015] FWC 4338 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mason Skinner
v
JJC Electrics Pty Ltd
(U2015/5088)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 26 JUNE 2015 |
Application for relief from unfair dismissal.
[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] The relationship between Mr Skinner and the respondent ended on 18 March 2015. Mr Skinner lodged his application at the Fair Work Commission on 23 April 2015. His application was lodged 15 days outside the statutory time limit.
[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Skinner. In that application it set out his reasons for delay. They are set out below.
1. “Upon being fired I have tried numerous time to contact the employer to no avail email text and telephone to find out why my entitlement had not been paid
2. I then proceeded with Fair Work all well with in the 21 days and have had a mediation session on the 17th April 2015. I thought this area and fair work were together and did not know or was advised by Fair Work this could affect an Unfair Dismissal case needing to being lodged in a 21 day time frame.
3. From my initial contact with fair work has taken me outside of this time frame.
4. Had I been offered more clear advice on my options of unfair dismissal and time frames I certainly would have lodged this application first and the mediation offered by Fair Work.
5. I hope you view my application and proceed as two wrong do not make a right and I have been unjustly terminated and unjustly not paid.
6. Today is the 23.04.15 and I have received a phone call from Fair Work saying he wants more time?? For what reason??”
[4] I wrote to Mr Skinner on 15 May 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Skinner provided a statement on 25 May 2015. His statement is extracted below.
“25th May 2015
The Hon Lea Drake
On the morning of my termination 18th March 2015 I was left very upset and shaken by the verbal and physical treatment I had received by my former employer James. I was ordered off the job by shouting swearing and left with my tools and belongings and had to make my own way home. I felt threatened for my safety and intimidated by what had occurred.
I did not want my job back as after this altercation there was no way I could possibly feel safe to work in that environment again.
This occurred on a Wednesday. Payday is meant to be Fridays so when I had not been paid by I sent James a message asking where my entitlements were. No response my mother sent an email asking where my entitlements were 20th March and still no response.
I called Fair work as you hear all the time having trouble at work call Fair work and the process began. Not once was I ever advised by Fair Work of any other options available to me to pursue. By the time I had lodged and waited for the replies by Fair Work and Mediation session was scheduled more than 21 days had passed and still I had not been explained any other option.
If it had been explained to me at my first call to Fair Work I would have lodged the application straight away and not wasted the time and energy pursuing it with Fair Work and went straight to Unfair Dismissal. Fair works website below tells you they help and work to resolve issues. Campaigns for unpaid wages enforcing legislation so I thought I was using the correct process by using them.
If the correct advice been conveyed to me at the first contact with Fair Work there would have been no delay in my application. I had done all that Fair Work asked me to do fill forms etc and still never knew of this option.
No employee should be subject to abuse I have endured and then be refused to be paid for what is owing to them. I hope you take these circumstance in account and proceed with my application. I am an Apprentice Employee and can’t afford to lose my entitlements and would like to try and make sure this type of harassment does not happen to other employee.”
[5] On 5 June 2015 I wrote to Mr Skinner seeking further clarification. I asked him whether, when he was referring to the fair work he was referring to the Fair Work Commission or the Fair Work Ombudsman.
[6] All correspondence with Mr Skinner was care of the Redline Group Pty Ltd. I issued an Order refusing Mr Skinner’s application for an extension of time and dismissed his application on 17 June 2015.
[7] I have since received abusive and threatening correspondence from Mr Skinner who was clearly upset at my refusal to extend the time for lodgement of his application. However,
I received an application for my reasons for decision from his representative on 17 June 2015 and my reasons for decision are set out below.
[8] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:
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.
[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:
“[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.” [Endnotes not reproduced]
[10] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[11] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.
reason for the delay-s.394(3)(a)
[12] The reasons Mr Skinner provided for his delay in lodgement were :
1. ignorance regarding the difference between the fair work commission and the fair work ombudsman and their jurisdictions; and
2. the failure of the ombudsman to provide appropriate advice.
[13] While sympathetic to these circumstances I was not persuaded that Mr Skinner’s difficulties were out of the ordinary, unusual or uncommon. Mr Skinner pursued a remedy with the ombudsman and was unaware of his rights elsewhere. This does not amount to an exceptional circumstance.
whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)
[14] Mr Skinner became aware of the end of his relationship with the respondent on 18 March 2015.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[15] Mr Skinner disputed his dismissal by lodging this application.
prejudice to the employer-s.394(3)(d)
[16] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Skinner’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.
the merits of the application - s.394(3)(e)
[17] Merit was a neutral issue in my consideration of this application.
fairness as between Mr Skinner and other persons in a similar position-S.394(3)(f)
[18] There was no issue of fairness in relation to any other person in a similar position.
[19] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. I was not satisfied that Mr Skinner’s circumstances were out of the ordinary course, unusual, special or uncommon.
SENIOR DEPUTY PRESIDENT
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