Michael Williams v Rail Commissioner

[2017] FWC 3306

[2017] FWC 3306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Williams
v
Rail Commissioner
(U2017/2503)

COMMISSIONER PLATT ADELAIDE, 20 JUNE 2017

Application for relief from unfair dismissal – extension of time – application granted.

[1] Mr Michael Williams 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 the Rail Commissioner which his form F2 Unfair Dismissal Application advised took effect on 13 February 2017.

[2] This application was lodged on 7 March 2017.

[3] Mr Williams’ application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation;

“I made an application for unfair dismissal in the Industrial Relations Commission of SA. I now believe that to be the wrong jurisdiction. I had thought my employer was covered under SA Award (sic).

The Unfair (sic) dismissal application (under s.106) in the IRC was lodged within 21 days and the file number 809/2017. There is a conference listed before Deputy President Bartel on 28 March 2017 at 2.30pm.

The Respondent in their response received today has noted the jurisdictional error,

I have attached a copy of that application (and response)”

[4] Attached to the form F2 Unfair Dismissal Application was the Industrial Relations Commission of South Australia Application in Respect of Unfair Dismissal and a form titled Employer Response (Alleged Unfair Dismissal).

[5] On 5 April 2017, the Rail Commissioner lodged a form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time.

[6] On 1 May 2017, my Associate corresponded with Mr Williams and the Rail Commissioner and advised that the extension of time issue would be considered at a telephone conference on 30 May 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 Williams was directed to provide a statement concerning the extension of time and any documents to be relied upon by 16 May 2017. The Rail Commissioner was invited to file any material in reply by 23 May 2017.

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

● Mr Williams’ employment was terminated effective 13 February 2017. On that day he contacted his solicitor Mr James Wither and told him he wished to contest the dismissal. Mr Wither advised him that given his employer was a state government instrumentality he would be covered by the State Commission.
● Mr Williams deferred to Mr Wither’s expertise.
● An application was lodged in the State Commission on 22 February 2017.
● A conciliation conference was listed before a member of the State Commission on 28 March 2017.
● On 6 March 2017, the Rail Commissioner filed a response to the State application and advised that the employer operated in the Federal system.
● On 7 March 2017, Mr Williams lodged this application with the Commission, making it 1 day out of time.
● The lateness of the application was caused by the incorrect advice provided to Mr Williams by his solicitor.

[8] The Rail Commissioner provided a written submission accompanied by a large number of attachments (much of which relate to the merits). The submission is relevantly summarised as follows:

● Mr Williams was dismissed on 13 February 2017 and his application made on 7 March 2017 was 1 day late.
● Mr Williams made an application with the State Commission on 22 February 2017.
● No exceptional circumstances exist such as to extend the time for lodgement.
● Mr Williams relies on representational error, but as a result of his recent experience in relation to a related matter before the Commission he should have been aware that his employment was regulated by Federal law.
● Mr Williams questioned his lawyer as to the filing of the application in the State Commission on 24 February 2017 and thus was alive to the issue of jurisdiction and cannot thus rely on representational error.
● Mr Williams did not follow up with his solicitor after this conversation and therefore did not make reasonable efforts to ensure his application was lodged in the correct jurisdiction.
● Whilst the Rail Commissioner accepts Mr Williams was entitled to rely on the advice of his solicitor, after he realised that the advice was incorrect on 24 February 2017 he is unable to rely on representational error.
● The Rail Commissioner accepts Mr Williams took steps to contest the dismissal.
● The Rail Commissioner will be prejudiced by the cost to defend the matter.
● The merits weigh against the extension of time.
● Fairness between Mr Williams and other persons in a similar position is a neutral factor.

[9] A hearing was conducted by way of telephone conference on 30 May 2017 and reconvened on 2 June 2017. A sound file record of the telephone conference was kept. Mr Wither (of counsel) represented Mr Williams and Mr Bakewell (of counsel) represented the Rail Commissioner. Permission was granted pursuant to s.596(2)(a) of the Act.

[10] Both parties reiterated and expanded upon their written submissions. Mr Williams contended that on or about 22 February 2017 he lodged an application with the Commission. The matter was adjourned until 2 June 2017 to allow further investigation.

[11] A subsequent review of the Commission’s records indicated that a copy of a State Commission unfair dismissal application on a Form 20 was emailed to the Commission’s Registry by Mr Williams at 10.29am on 24 February 2017. At 10.47am on the same day, Mr Williams sent an email to the Commission’s Registry asking them to ignore that email. At 10.53am the Commission’s Registry forwarded Mr Williams application to the State Commission. At 10.58am the Commission’s Registry forwarded Mr Williams a receipt for his email of 10.29am and advised it had been sent to the State Commission.

[12] On 31 May 2017, Mr Williams provided a witness statement primarily concerned with the lodgement of the application, a copy of correspondence between himself and Mr Wither dated 6 March 2017 concerning jurisdiction and a copy of an Employer Response dated 6 March 2017 concerning the State Commission application which raised the jurisdictional objection. In addition, a statement from Mr Wither dated 31 May 2017, as to his conduct in the matter was provided including a copy of an email to Mr Williams dated 20 February 2017, with a link to a file on the State Industrial Court website.

[13] Prior to the hearing continuing on 2 June 2017, Mr Bakewell submitted transcript of, and a range of documents related to, a Commission hearing before Commissioner Hampton as evidence of Mr Williams’ knowledge of the jurisdiction.

[14] 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.”

[15] The unfair dismissal application by Mr Williams was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] 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 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.”

[17] I have considered whether the transmission of that document and its receipt constituted an application under s.394 of the Act being made. I note in Ioannou v Northern Belting Services Pty Ltd 2 a Full Bench determined that an application under s.394 of the Act could not be regarded as an application under s.365 of the Act. That being the case, I cannot see how an application under a different statute (s.106 of the Fair Work Act 1994 (SA)) could be regarded as an application under s.394 of the Act.

[18] This position is bolstered by the fact that Mr Williams sent an email requesting the Commission registry to disregard that communication minutes later.

[19] Whilst I find that Mr Williams’ communication on 24 February 2017 was not an application under s.394 of the Act it is, however, action taken by Mr Williams to dispute the dismissal.

[20] In respect of Mr Williams prior dealings with the Commission, a review of the transcript does not convince me that Mr Williams knowledge of jurisdictional issues was such that he could be reasonably be expected to ignore the (incorrect) advice of his solicitor.

[21] I have considered the matter of Clark v Ringwood Private Hospital 3 which details the principles in respect of matters of representative error.

[22] I make the following findings.

[23] Mr Williams actively contested his dismissal soon after the event.

[24] Mr Williams reasonably relied on his solicitor’s advice and followed his instructions to lodge his application in the State Commission.

[25] Mr Williams appears to have been confused as to the correct jurisdiction around the 24 February 2017, but I accept his contention that he was not so well versed in unfair dismissal law as to reject the advice of his solicitor.

[26] In the afternoon of 6 March 2017, upon becoming aware of the jurisdictional objection by the Rail Commissioner, Mr Williams contacted Mr Wither and filed an application in the correct jurisdiction on 7 March 2017.

[27] The applicant needs to provide a credible explanation for the entire period of the delay, 4 and has done so.

[28] I do not accept that the granting of an extension of time represents prejudice to the Rail Commissioner, other than the need to defend the application.

[29] 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.

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

Conclusion

[31] For the reasons I have set out above, I am satisfied that Mr Williams’ circumstances can be regarded as exceptional so as to support an extension of time. The application will be listed for directions conference. An Order 5 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr J.Wither of counsel on behalf of the Applicant.

Mr S.Bakewell of counsel on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

30 May and 2 June.

 1   [2011] FWAFB 975

 2   [2014] FWCFB 6660

 3 (1997) 74 IR 413

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

 5   PR593913

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