Maxwell Mason v Mt Lofty Operations Pty Ltd T/A Mount Lofty House

[2020] FWC 6464

[2020] FWC 6464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maxwell Mason
v
Mt Lofty Operations Pty Ltd T/A Mount Lofty House
(U2020/14170)

COMMISSIONER PLATT ADELAIDE, 2 DECEMBER 2020

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

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Maxwell Mason a further period for his unfair dismissal application (Application) to be made against Mt Lofty Operations Pty Ltd T/A Mt Lofty House (Mt Lofty House).

Background

[3] On 28 October 2020, Mr Mason lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Mt Lofty House which his form F2 Unfair Dismissal Application advised took effect on 7 October 2020.

[4] The application did not recognise that it was made beyond 21 days from the date of dismissal.

[5] On 10 November 2020, Mt Lofty House lodged a form F3 Employer Response which indicated that the dismissal occurred on 3 October 2020 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

[6] On 16 November 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 1 December 2020. 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.

[7] Mr Mason filed the following material:

•  A copy of the Form F2 application

•  An outline of submission (which also contained Mr Mason’s statement)

•  A statement from Ms Hailey Murray

•  A letter from Dr Stephen Hadges (Ms Murray’s Doctor)

[8] Mt Lofty House provided a written submission, which contained copies of relevant correspondence between the parties and a statement of Mr Jesse Kornoff (General Manager).

Hearing

[9] A hearing was conducted by way of telephone conference on 1 December 2020. A sound file record of the telephone conference was kept. Mr Mason represented himself, Mt Lofty House was represented by Mr Owen Webb from the Australian Hotels Association.

[10] Mr Mason’s position is summarised as follows:

•  He was advised on 3 October 2020 that he was immediately dismissed but considered that the dismissal was procedurally unfair.

•  He received written confirmation of the dismissal on 7 October 2020.

•  The delay was attributed to him providing the sole round the clock care to Ms Murray who suffered from grand mal seizure on 17 September 2020 and was hospitalised as a result. Ms Murray returned to her home under the sole care of Mr Mason and suffered additional seizures and falls afterwards. Mr Mason contends that his caring responsibilities explained the delay in lodging the application. This position was supported by Dr Hadge’s statement and the statement of Ms Murray.

•  I have ignored the portions of Ms Murray’s and Dr Hadge’s statement which contains hearsay or non-medical opinion evidence.

•  I note that Dr Hadge’s was unable to provide any medical opinion as to Mr Mason.

•  Mr Mason contends that the termination date should be 7 October 2020 and that application is on time, and in the alternative that there are exceptional circumstances and that the Commission should grant an extension of time.

[11] Mt Lofty House’s position is summarised as follows:

•  The dismissal took effect on 3 October 2020.

•  The application is 4 days out of time.

•  Mr Mason’s circumstances are not exceptional.

•  It disputed the explanation of the delay but could not submit any evidence on this topic.

•  It did not contend that it would suffer prejudice.

Applicable Law

[12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[14] 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 Ltd⁴ 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.”

Consideration

[15] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[16] There was no dispute that Mr Mason was advised by Mr Kornoff by telephone on 3 October 2020 that he would be dismissed with immediate effect. Mr Mason’s email of 5 October 2020 indicates his awareness of his prior dismissal and Mr Kornhoff’s statement (para 9) on this topic was not disputed.

[17] I find that Mr Mason was dismissed on Saturday 3 October 2020 and was aware of the dismissal at the time it occurred. Given the final day of the 21 day period fell on a Saturday, the timeframe is extended to the next business day. 7

[18] On this basis, Mr Mason’s application is 2 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

Paragraph 394(3)(a) - reason for the delay

[19] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,9the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[20] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 10

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[21] Any procedural fairness issues in the period before the dismissal (to which I make no finding) does not satisfactorily explain the delay.

[22] There is no evidence of any impact on the circumstances on Mr Mason’s medical condition.

[23] I accept that Mr Mason was solely responsible for the care of Ms Murray. Ms Murray’s medical condition was significant and continued to be challenging during the period after the dismissal. I accept that Mr Mason would have reasonably been distracted from the lodgement of his unfair dismissal claim during this period. Mt Lofty House had not provided any evidence that challenges the information before me on this topic.

[24] In my view, Mr Mason has provided a credible reason for the delay in filing his Application, this factor weighs in favour of granting an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[25] Mr Mason was aware of the dismissal on the date it occurred.

[26] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[27] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 11

[28] No other action was taken to dispute the dismissal and this factor is a neutral consideration in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[29] Prejudice to the employer will weigh against granting an extension of time. 12 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.13

[30] There is no submission that the granting of an extension of time represents prejudice to Mt Lofty House.

Paragraph 394(3)(e) - merits of the application

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

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 14 considered this criterion and said:

“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[33] I am not satisfied that the issue of fairness as between Mr Mason and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[34] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mr Mason.

[35] An Order¹⁵ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr M Mason the Applicant.

Mr O Webb of the Australian Hotels Associationon behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
December 1.

Printed by authority of the Commonwealth Government Printer

<PR725061>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2 Section 394(3) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

4 [2011] FWAFB 975

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 7   Acts Interpretation Act 1901 (Cth) s.36(2)

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 9   [2016] FWCFB 349

 10   [2018] FWCFB 3288 at [35]-[45]

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 12   Ibid

 13   Ibid

 14   [2016] FWCFB 6963

15 PR725062