Michael Zammit v Musolino Group of Companies Pty Ltd T/A Hi Tech Processors

[2015] FWC 2445

[2015] FWC 2445

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Zammit
v
Musolino Group of Companies Pty Ltd T/A Hi Tech Processors
(U2015/4020)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 APRIL 2015

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

[1] Mr Zammit 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 Musolino Group of Companies Pty Ltd T/A hi Tech Processors (Hi Tech). At a telephone conference convened on 10 April 2015 I advised that I had concluded 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 Zammit's application was lodged on 17 March 2015. In that application Mr Zammit advised his employment was terminated on 23 February 2015 and that termination took effect on the same day. In his application, Mr Zammit advised that the application was made within time.

[3] On 18 March 2015 my Associate corresponded with both Mr Zammit and Hi Tech and advised that the extension of time issue would be considered through a telephone conference on 10 April 2015. Substantial information about the extension of time issue was provided to the parties. Mr Zammit was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 3 April 2015.

[4] Additional information was received from Mr Zammit in the following terms:

“I Michael Zammit had taken so long to lodge my application for unfair dismissal as I was waiting for my annual leave to be payed to me.

My annual pay was not payed to me so my decision to then act was just out of the twenty one day’s.

I am also waiting to date on my one week’s pay still owing to me.

I have found a casual job, I am working as many hours available to me.

I sincerely apologise for any inconvenience caused by not e-mailing you by the third of April 2015.” 1 (sic)

[5] The Employer’s Response to the application advised that an extension of time was opposed and that Hi Tech was a small business and the termination of Mr Zammit's employment was consistent with the Small Business Fair Dismissal Code.

[6] Mr Zammit participated in the telephone conference. Mr Musolino from Hi Tech 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.

[7] 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.”

[8] On the information before me I am satisfied that the application was made one day 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 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.”

[9] Mr Zammit's reasons for the delay were that he was waiting for payment of his accrued annual leave entitlements and that he has been undertaking alternative casual work. Additionally, in the conference, he advised that he had been “sitting on it and thinking about if after the termination of my employment”. I have considered each of these reasons for the delay, but I do not consider that they are of the nature of exceptional circumstances. It is clear from Mr Zammit's application that he was aware of the termination of his employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Zammit 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.

[10] In terms of the merits of the application, I have noted the information provided by Mr Zammit in his application. In this respect he asserts that the termination of his employment followed a day's sick leave. I have also noted the information in the employer's response which asserts Mr Zammit had a history of unauthorised absenteeism and a substantive altercation with Mr Musolino. If that information was established in the evidence, I consider that it is unlikely that Mr Zammit's application would be successful. Notwithstanding this, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[12] Accordingly I have concluded that the material before me does not establish that Mr Zammit'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 (PR562908) giving effect to this decision will be issued.

Appearances (by telephone):

M Zammit on his own behalf.

D Musolino for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

April 10.

 1   Email submission of applicant, 7 April 2015

 2   [2011] FWAFB 975

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<Price code C, PR562906>