Matthew Moke v Lincon Logistics Pty Ltd T/A Lincon Hire

[2017] FWC 3144

[2017] FWC 3144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Moke
v
Lincon Logistics Pty Ltd T/A Lincon Hire
(U2017/3440)

COMMISSIONER PLATT ADELAIDE, 8 JUNE 2017

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Mr Matthew Moke has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Lincon Logistics Pty Ltd T/A Lincon Hire (Lincon) which his application Form F2 advised took effect on 7 March 2017.

[2] This application was lodged on 30 March 2017.

[3] Mr Moke’s application did not recognise that it was made beyond 21 days from the date of dismissal.

[4] On 2 May 2017, Lincon lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 5 May 2017, my Associate corresponded with Mr Moke and Lincon and advised that the extension of time issue would be considered at a telephone conference on 7 June 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Moke was directed to provide a statement concerning the extension of time and any documents to be relied upon by 19 May 2017. Lincon was invited to file any material in reply by 26 May 2017.

[6] On 22 May 2017, Ms Lock of Queensland Law Group on behalf of Mr Moke lodged an amended Form F2 Unfair Dismissal Application which identified that the dismissal date was 8 March 2017 but still did not recognise that the application was made beyond 21 days from the date of dismissal.

[7] Mr Moke provided a written submission which is summarised as follows:

● Mr Moke’s employment was terminated effective 8 March 2017, that date being the date of the written letter of termination provided by Lincon.
● Mr Moke disputes that the application was lodged out of time, and contends that no submissions were required as to its lateness.
● Mr Moke seeks that the Commission extend the time, if it is of the opinion that there are exceptional circumstances.
● The only error made by the Representative was that the termination date of 7 March 2017 was provided on the original application form.
● Whilst the submissions were lodged late this was not due to fault on the part of Mr Moke.
● Mr Moke first became aware that his employment was terminated on 8 March 2017.
● Mr Moke did not contact his employer once his employment was terminated.
● There is no prejudice to the employer.
● Mr Moke complied with the lawful directions of his employer and provided a urine sample which tested negative. The merits of the application weigh in favour of Mr Moke.
● As to fairness between Mr Moke and others in a like position, Mr Moke advised that the other employees involved in the incident were also dismissed.

[8] Lincon provided a written submission which is summarised as follows:

● Mr Moke’s employment was terminated by telephone on 7 March 2017.
● On 8 March 2017, the termination of Mr Moke’s employment was confirmed in writing. Lincon states that the date of the letter was incorrect, as a result of a Microsoft auto date function and should have referred to 7 March 2017.
● Mr Moke’s application was lodged out of time.
● Mr Moke has not provided any evidence that he pursued his application, the date that he contacted his legal representative or any steps to follow up his legal representative.
● There is no prejudice to the employer.
● Mr Moke refused to take a drug test on 7 March 2017 and the merits weigh in favour of Lincon.
● No exceptional circumstances exist such as to extend the time for lodgement.

[9] A hearing was conducted by way of telephone conference on 7 June 2016. A sound file record of the telephone conference was kept. Ms Lock (of counsel) represented Mr Moke and Mr Sanders (of counsel) represented Lincon. Permission was granted pursuant to s.596(2)(a) of the Act.

[10] Mr Sanders advised that Mr Moke was terminated by Mr Scott Blackwell, SA Manager, during a telephone call on 7 March 2017. No statement was received from Mr Blackwell and he was not present at the hearing. Ms Lock contended that Mr Moke was advised by a colleague (who was also involved in the incident) that he was dismissed on 7 March 2017 and did not receive the letter until the next day. Whether the dismissal occurred on 7 or 8 March 2017 does not impact the need for the extension of time application as the application would be out of time on either date. For the purposes of this decision, I have used 8 March 2017 as the date of dismissal.

[11] After some discussion, Ms Lock accepted that the application was filed late regardless of which date Mr Moke was dismissed on.

[12] Ms Lock then reiterated her submission with particular focus on the merits.

[13] Mr Moke advised that his application had been impacted by the effect of Cyclone Debbie which occurred on 29 March 2017. No further information was provided.

[14] Mr Sanders reiterated his submission with particular focus on the failure of Mr Moke to adduce evidence as to his contact with his legal representative and any follow up to ensure that the application would be filed on time.

[15] Ms Lock was invited to respond to Mr Sander’s submissions but did not address the specific issue raised.

[16] 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.”

[17] Based on the dismissal occurring on 8 March 2017, this unfair dismissal application by Mr Moke was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[18] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[19] I have also considered the matter of Clark v Ringwood Private Hospital 2 which deals with representative error and sets out a number of principles as detailed below;

“In our view the following general propositions should be taken into account in deciding whether or not the representative error constitutes an acceptable explanation for delay:

(1) 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. (original emphasis)

…

(2) 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.

…

(3) 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.

…

(4) Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s 170CE(8).”

Consideration

[20] I make the following findings.

[21] Mr Moke took no action to contest the dismissal other than the lodgement of his application.

[22] There is no evidence before me that suggests representative error other than Ms Lock’s failure to correctly identify the date upon which the application was required to be lodged. There is no evidence before me as to how that incorrect calculation impacted on the lodgement.

[23] There is no evidence as to when Mr Moke contacted his representative, or any steps he took to follow up to ensure the application was lodged on time.

[24] Mr Moke has suggested that the presence of Cyclone Debbie impacted on the lodgement but did not state how. Whilst I am mindful of my recent decision in Billiana Hanson v Blueprint Global Pty Ltd 3the facts in this matter differ greatly. In Billiana Hanson v Blueprint Global Pty Ltd, the applicant gave evidence that she contacted her lawyer 3/4 days after the employment was found to have ended, met with her lawyer 6/7 days later, instructed her lawyer to lodge a claim 2 days after that and then followed up on 30 March 2017 to confirm lodgement in light of the impending Cyclone Debbie. No evidence of that nature was submitted, despite Mr Sanders highlighting the absence of evidence on that issue and Ms Lock being invited to respond to those submissions.

[25] Even allowing for the impact of Cyclone Debbie on 29 March 2017, Mr Moke has failed to explain any steps he took to contest the dismissal in the 20 days prior.

[26] The applicant needs to provide a credible explanation for the entire period of the delay, 4 but has not done so.

[27] There is no submission that the granting of an extension of time represents prejudice to Lincon.

[28] In terms of the merits of the application, there is insufficient evidence before me to make an assessment of the competing positions and, accordingly, I have regarded the merits as a neutral factor.

[29] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[30] For the reasons I have set out above, I am not satisfied that Mr Moke’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 5 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms S.Lock of Queensland Law Group on behalf of the Applicant.

Mr J.Sanders of MST Lawyers on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

7 June.

1 [2011] FWAFB 975

 2 (1997) 74 IR 413

 3   [2017] FWC 2660

 4   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 5   PR593604

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