Matthew Healey v Caring Choice

[2015] FWC 2441

[2015] FWC 2441

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Healey
v
Caring Choice
(U2015/3778)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 APRIL 2015

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

[1] Mr Healey 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 Caring Choice Pty Ltd T/A Caring Choice (Caring Choice). At a telephone conference convened on 10 April 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 Healey’s application was lodged on 6 March 2015. In that application Mr Healey advised that he was told of the termination of his employment on 10 February 2015 and that this termination took effect from 11 February 2015. In his application, Mr Healey advised that the application was lodged within time.

[3] The Employer’s Response to the application asserted that the termination of Mr Healey’s employment took effect on 10 February 2015. Accordingly, Caring Choice asserted that the application was lodged out of time.

[4] On 19 March 2015 my Associate corresponded with both Mr Healey and Caring Choice and advised that the extension of time issue would be considered through a telephone conference on 23 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Healey was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 16 March 2015. The conference listed for 23 March 2015 was changed to 10 April 2015 to accommodate Mr Healey.

[5] Further information was received from Mr Healey on 19 March 2015 when he provided advice, by email, in the following terms:

“The documents were placed in the mail box on the 4th of march and should have arrived in the required time period.

....”

[6] Despite being reminded of the conference by email on 9 April 2015, Mr Healey did not participate in the telephone conference. Mr Doecke, of counsel sought to represent Caring Choice. I declined to grant that permission because I was not persuaded that the matter was of sufficient complexity to warrant representation of that nature. I considered that Caring Choice was able to properly represent itself in this matter. Further, I was concerned that a grant of representation could be inconsistent with the provisions of s.596(2)(c). Mr Pyybaara from Caring Choice also participated in this 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] On the information before me I have accepted Mr Healey’s advice in his application that he did not receive the letter confirming the termination of this employment until 11 February 2015. Notwithstanding this, I have taken the date of 10 February specified in that correspondence to be the date that termination took effect. Accordingly, I am satisfied that the application was made 3 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.”

[10] Mr Healey’s reasons for the delay go to the extent to which he posted his application on 4 March 2015 such that it should have been received within 21 days. As of 4 March 2015 the 21 day time limit had already been achieved. Secondly, I have taken it that Mr Healey asserts that some, or all of the delay, should be attributed to a delay in the delivery of the application. There is no evidence before me which confirms an inappropriate delay in the delivery of the application to the Commission and I do not consider any such basis for a delay has been established. Accordingly, I am not satisfied that Mr Healey 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 have accepted Mr Healey’s position that he did not receive the letter advising of the termination of his employment until 11 February 2015. However, even if I allowed an extra day as a consequence, the application was still lodged 23 days later. I am not satisfied that, apart from the late lodgement of this application, Mr Healey pursued other actions so as to challenge the termination of employment. I am not satisfied that an extension of time of this magnitude would prejudice Caring Choice but this, of itself, does not provide a basis for an extension of time.

[11] The limited material before me relative to the merits of the application gives rise to significant doubt that the merits of Mr Healey’s are sustainable. However, information which would enable a definitive conclusion is not before me. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[13] Accordingly I have concluded that the material before me does not establish that Mr Healey’s circumstances can be regarded as exceptional so as to warrant an extension of time. If Mr Healey considers that he has evidence that establishes that he was unable to participate in the conference, or to provide advice of his inability to participate, a written submission to that effect, supported by evidence must be provided to me by close of business 22 April 2015. In that circumstance I may review this decision. Absent that circumstance, the application will be dismissed on this basis and an Order (PR562901) giving effect to this decision will be issued.

Appearances (by telephone):

M Pyybaara for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

April 10.

 1   [2011] FWAFB 975

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<Price code C, PR562900>