Michael Donaldson v Morgan Sawmill Jamestown

[2015] FWC 2530

[2015] FWC 2530

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Michael Donaldson
v
Morgan Sawmill Jamestown
(C2015/1898)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 APRIL 2015

Application to deal with contraventions involving dismissal - late lodgement - extension of time not granted.

[1] Mr Donaldson has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Morgan Sawmill Jamestown (Morgan Sawmill). At a telephone conference convened on 14 April 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in s.366 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 Donaldson's application was lodged by his lawyer on 27 February 2015. That application advised that Mr Donaldson's employment was terminated on 28 January 2015. The following information was provided relative to the time for lodgement of the application:

“1. The Applicant was unaware of the limitation period to bring this Application until 26 February 2015 when the Applicant first spoke to a solicitor.

2. The Applicant had contacted the owners of the Respondent, Luke and Ed Morgan, in relation to the termination of employment and seeking the same to be set aside and be re-instated.

3. The Applicant was advised by the Respondent that if his replacement does not work out the Respondent will contact the Applicant about returning to work.

4. The Applicant is unsophisticated.

5. The delay in filing this Application is short.

6. No prejudice arises by reason of the delay in bringing this Application.” 1

[3] The application was the subject of a conference with me on 23 March 2015. At the commencement of this conference I raised the potential late lodgement issue. The parties both agreed that the conference should proceed to explore possible settlement options on the basis that, if there was no agreement, I would then determine the extension of time issue. In the event that that the application was determined to be within time, a certificate would be issued. If the application was lodged out of time and no extension of time was granted the application would be dismissed. No agreement was reached and, accordingly, the matter was considered in a telephone conference on 14 April 2015.

[4] Mr Donaldson provided a witness statement.

[5] This statement specifically addressed the late lodgement and extension of time issues in the following terms:

“Reason for Delay in Filing General Protections Application

32. I had not filed a General Protections Application within the 21 day time period as I was not aware of there being such a time period until I spoke to a solicitor, Mr Milsom, of Moloney & Partners by telephone on 26 February 2015 and was advised of the time limit.

33. I subsequently met with Mr Milsom on 27 February 2015 at his office. On receiving advice from Mr Milsom a General Protections Application was filed on 27 February 2015. My discussions with Mr Milsom was the first time I had obtained legal advice as to what had occurred at Morgans. I had not obtained legal advice earlier because I was hopeful of getting a job back with Morgans wither my old job at Wingfield or at Jamestown. I had understood from Luke that if the replacement did not work out they would offer my old job back at Wingfield or he was going to see if he could get something for me up at Jamestown. When Luke failed to contact me I decided to get legal advice.

Any Action taken to Dispute the Dismissal

34. I refer to my above telephone discussions with Luke and Ed Morgan.

Any Prejudice to the Employer

35. I am unaware of any prejudice to the employer that could arise from the delay in filing this Application.

Merit of the Application

36. I believe this Application has strong merits.”

[6] The Employer’s Response to the application advised of its position that Mr Donaldson left voluntarily and had not been dismissed.

[7] Mr Donaldson participated in the telephone conference. He was represented by Mr Milsom, of counsel pursuant to a grant of permission made under s. 596(2)(a). Mr Morgan from Morgan Sawmill also participated in this conference. 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 365 relevantly states:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[9] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[10] On the information before me I am satisfied that the application was made some 9 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.366 in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[11] Mr Donaldson's reasons for the delay were that he was unaware of the time limit until he spoke with a lawyer on 26 February 2015. Further, that he had not sought legal advice earlier because he was hopeful of getting his job back. Mr Donaldson's lack of awareness of the time limit is neither an acceptable reason for the delay nor an exceptional situation. Notwithstanding Mr Milsom’s submission that the discussions which Mr Donaldson had with senior managers of Morgan Sawmill on 29 and 30 January 2015 gave him reason to not take any further action in the hope that his replacement employee would not be suited such that another job could be offered to him at either Wingfield or Jamestown, I have concluded that Mr Donaldson’s delay in seeking legal advice was his own decision and cannot be regarded as indicative of an exceptional circumstance. On any reasonable understanding, Mr Donaldson would have to expect that some time would need to elapse for Morgan Sawmill to assess the performance of a new employee. Further, I am not satisfied that Mr Donaldson’s evidence establishes any form of commitment to re-employment, as distinct from disclosing that possibility. In these circumstances, I am not satisfied that Mr Donaldson has established to me a sustainable basis for the delay in taking action to pursue this application. It is clear from Mr Donaldson's application that he considered that he had been dismissed on 28 January and I have taken that date as the date that termination of employment took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Donaldson pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[12] In terms of the merits of the application, I have noted the Morgan Sawmill position that it did not dismiss Mr Donaldson. Dismissal by the employer is a fundamental prerequisite for this application. In this respect it is clearly apparent that there is a substantial factual dispute between the parties. Accordingly, and because information which allows a definitive conclusion in this respect is not before me I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[14] Accordingly I have concluded that the material before me does not establish that Mr Donaldson's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR563020) giving effect to this decision will be issued.

Appearances (by telephone):

I Milsom of counsel for Mr Donaldson

L Morgan for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

April 14.

 1   Form F8, para 1.4

 2   [2011] FWAFB 975

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