Miles Sowden v Environ Australia Pty Ltd

[2015] FWC 2405

[2015] FWC 2405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miles Sowden
v
Environ Australia Pty Ltd
(U2015/3086)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Miles Sowden alleged that the termination of his employment by Environ Australia Pty Ltd (Environ) was unfair.

[2] At the hearing, I granted permission for Environ to be represented by a legal practitioner. It was submitted that the matter, being a jurisdictional matter, involved some complexity. While extension of time matters are generally not complex, in this case the interrelationship between the date of dismissal and the reasons for the delay added complexity. I determined, given Mr Sowden did not object to permission being granted, that representation would enable the matter to be dealt with more efficiently.

[3] Mr Sowden was notified on 13 January 2015 that his position was redundant and the termination of that position took effect that day.

[4] On 14 January 2015, Mr Sowden agreed to complete a draft report for Environ for a fixed amount of $10,000.

[5] On 18 January 2015, Mr Sowden uploaded the draft report and after that date took some phone calls in relation to the report.

[6] On 21 January 2015, Mr Sowden invoiced Environ for the report.

[7] On 28 January 2015, Mr Sowden was paid the bulk of the payment with a small retainer held in the event of questions.

[8] Between 14 January and 21 January 2015, there was discussion between the parties about how Mr Sowden would be paid and it was agreed that he would be paid as a casual employee.

[9] The first issue to be determined is when did Mr Sowden’s employment end?

[10] Mr Sowden accepted that his substantive position ended on 13 January 2015. However, he submitted that the effective date of termination should be 28 January 2015 because that is when he was paid for the work performed to complete the report.

[11] Mr Sowden’s employment could have ended on:

13 January 2015 when his substantive position was terminated;
18 January 2015 when he completed the task he was engaged to perform;
21 January 2015 when he invoiced for the work; or
28 January 2015 when he was paid.

[12] If the first three dates are the date of termination then, in lodging his application on 13 February 2015, Mr Sowden did not lodge his application within the 21 days provided for in the Fair Work Act 2009 (the Act).

[13] I do not accept that Mr Sowden’s engagement ended when he was paid. There is no legal foundation for this submission.

[14] Mr Sowden’s submissions are contradictory. On the one hand he seeks to rely on his ongoing employment after 13 January 2015 albeit on a “casual basis” to support his submission that the application was lodged in time, but does not accept the consequences of that submission.

[15] After his substantive position was terminated, Mr Sowden entered into a contract with Environ for a specified task for which he was paid $10,000. While it was agreed that this would be put through the books as casual employment, Mr Sowden was paid $10,000 to complete a draft report. That position terminated when the task was completed. If this accurately describes what happened, then Mr Sowden varied his contract of employment by entering into a contract for a specified task. Alternatively, one contract ended and another one commenced, but the new contract was also for a specified task. That contract came to an end when the task was completed. Employees whose employment ends due to the completion of a specified task are not dismissed.

[16] If that is the case, then Mr Sowden is not protected from unfair dismissal and his application must be dismissed.

[17] However, for the purpose of this application, I will determine whether, if Mr Sowden’s employment ended on either 13, 18 or 21 January 2015, Mr Sowden should be granted an extension of time.

[18] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[19] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

"[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." [Endnotes not reproduced]

(a) the reason for the delay;

[20] Mr Sowden says that he did not make his application in time because he was busy completing the project. He was unaware that there was a 21 day time limit and he was being harassed by Environ.

[21] Mr Sowden uploaded the draft report on 18 January 2015 and while he took phone calls in relation to that report after that date, including one that lasted 1.5 hours, it cannot be said that after 18 January 2015 that his work on the project prevented him from lodging his application.

[22] Mr Sowden lodged an online complaint with the Fair Work Ombudsman (FWO) on 6 February 2015 in which he advised that he was considering making an unfair dismissal claim. In that complaint, he stated that he wanted it acknowledged that the proceedings commenced on that date. Mr Sowden received a written response from the FWO after an attempt was made to telephone him. That response advised Mr Sowden that if he wanted to lodge an unfair dismissal claim he needed to contact the Fair Work Commission, and he had to lodge the claim within 21 days of the dismissal. Mr Sowden said he did not read the reply until the evening of 13 February 2015.

[23] On 6 February 2015, Mr Sowden received a letter from Environ’s lawyers alleging that he had breached his post employment obligations under his contract. He received another letter on 10 February 2015. He said this harassment prevented him from lodging his application on time.

[24] I do not consider that Mr Sowden’s reasons for the delay weigh in favour of a finding of exceptional circumstances. It is not unusual for people whose employment has been terminated to be busy after the termination either looking for work or performing work. I accept it is unusual for an employee, who has been made redundant, to continue to perform work for their previous employer. However, the draft report was finished on 18 January 2015 and being busy with the report does not explain the remainder of the delay. Mr Sowden relies upon his ignorance of the 21 day time limit. Ignorance of the time limit is not unusual. Mr Sowden also relied upon the letters from his employer. Mr Sowden submitted that it was this conduct that was a deciding factor in his decision to lodge his unfair dismissal claim. Of course, by the time he received the first letter the application was already late (assuming his employment was terminated on 13 January 2015) . At most what can be said is that Mr Sowden did not decide to lodge his application until after the dispute arose with Environ about his post employment conduct.

[25] Mr Sowden submitted that this combination of factors is unusual and weighs in favour of granting an extension of time. I do not agree. Even when these events are put together they do not provide a reasonable explanation for the delay.

(b) whether the person first became aware of the dismissal after it had taken effect;

[26] Mr Sowden was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This is not a case where information about the “real” reason for the dismissal only became known after the event. This weighs against a finding of exceptional circumstances.

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

[27] Mr Sowden did not take any action to dispute the dismissal. He said it would have served no purpose. This weighs against a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[28] Environ submitted that it would be prejudiced if an extension of time were granted. No evidence was called to support this submission. It was submitted that the case raises a number of objections and Environ would be put to the expense of defending the claim. I do not consider that any prejudice suffered by Environ weighs against the finding of exceptional circumstances.

(e) the merits of the application;

[29] Environ claim that Mr Sowden’s earnings exceed the high income threshold. Mr Sowden says his work was covered by the Professional Employees Award 2010. 2 Environ submitted that this was a genuine redundancy. Mr Sowden submitted that there was a failure to consult and he could have been redeployed.

[30] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Sowden’s claim has no prospects of success, this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[31] No relevant submissions were made on this criterion. I consider it to be neutral.

Conclusion

[32] I do not consider that there are exceptional circumstances warranting an extension of time. Mr Sowden’s explanation for the delay does not weigh in favour of such a finding. This is not a case where the strength of the merits of the case outweighs the lack of a reasonable explanation for the delay. Mr Sowden’s application for an extension of time is dismissed and consequently his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

M Sowden on his own behalf.

G Bartlett for the Respondent.

Hearing details:

2015.

Melbourne and Perth via telephone:

7 April.

 1   [2011] FWAFB 975.

 2   MA000065.

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