Mr Alfred Vasta v Dural Country Club Limited

[2013] FWC 2932

[2013] FWC 2932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Alfred Vasta
v
Dural Country Club Limited
(U2013/7093)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 10 MAY 2013

Application for relief from unfair dismissal - extension of time

[1] Mr Vasta seeks an extension of time for lodgement of this application which was lodged pursuant to section 394 of the Fair Work Act 2009 (the Act) three weeks and one day late.

[2] I heard his application for an extension of time for lodgement on 8 August 2013. Mr Vasta represented himself. The Dural Country Club Ltd was represented by a director, Mr McDougal.

[3] Mr Vasta's explanation for the late lodgement of this application was that he had issues in relation to his termination payments and that he was concentrating on the resolution of those matters.

[4] Mr Vasta has had some past experience with the operation of the Act which arose from the past termination of employees of the club. Although Mr McDougal probably overstated Mr Vasta's familiarity with the Act, I am satisfied that Mr Vasta, a tertiary educated engineer, was familiar with the time limit for lodgement and had the capacity and opportunity to lodge his application within time.

“[5] The relevant legislative framework for the exercise of FWA’s discretion in relation to applications of this kind is set out below.

‘S394 Application for unfair dismissal remedy

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.’

[6] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[7] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[8] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.”

[5] I have considered the circumstances of this case in light of the criteria set out for consideration in s394(3). I have considered ss394(3)(a). I have concluded that there are no exceptional circumstances revealed by the evidence and submissions of Mr Vasta which would persuade me to exercise my discretion in his favour. The circumstances were those which are regularly or routinely or normally encountered. They are not the circumstances contemplated by the Act as likely to justify an extension of time for lodgement of an application pursuant to section 394.

[6] The application for an extension of time for lodgement of this application is refused.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   [2010] FWA 1394 [PR994029] - 25 February 2010

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