Mr Antoni Barresi v I J Carpentry Services Pty Ltd T/A I J Carpentry

[2015] FWC 8167

[2015] FWC 8167

FAIR WORK COMMISSION

DECISION

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

Mr Antoni Barresi
v
I J Carpentry Services Pty Ltd T/A I J Carpentry
(U2015/13642)

COMMISSIONER PLATT ADELAIDE, 15 DECEMBER 2015

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

[1] Mr Barresi 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 I J Carpentry Services Pty Ltd T/A I J Carpentry (I J Carpentry).

[2] An unfair dismissal application dated 29 September 2015 was received by the South Australian registry of the Fair Work Commission (the Commission) on 15 October 2015.

[3] Mr Barresi's application advised that his employment was terminated on 1 May 2015. Mr Barresi asked the Commission to consider the following information in deciding whether to accept his application out of time:

"Delay caused by, constantly being told that there may be work in the near future. Although, my apprenticeship was never put on hold for the time that there was no work, I then wanted to look for an apprenticeship after being told there was no work. So was going to terminate the contract until I got some professional advice to put the termination on hold. The contract was later withdrawn by the employer” 1

[4] On 2 December 2015, my associate corresponded with both Mr Barresi and I J Carpentry, and advised that the extension of time issue would be considered through a telephone conference on 15 December 2015. Substantial information about the extension of time issue was provided to the parties. Mr Barresi was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 8 December 2015.

[5] No additional information was received from Mr Barresi prior to the telephone conference.

[6] I J Carpentry submitted copies of SMS text messages between the company and Mr Barresi, which suggested Mr Barresi had determined to cease his apprenticeship on or about 23 June 2015.

[7] Mr Barresi participated in the telephone conference. Ms Radovanovic represented I J Carpentry.

[8] By way of background, Mr Barresi is part of the extended family that operates I J Carpentry. Mr Barresi was completing an apprenticeship at the time the employment ended. It appears that Mr Barresi was seeking to end the apprenticeship process early, and that I J Carpentry had been advised by the training provider that this was not possible. Mr Barresi contends that his employment was terminated by I J Carpentry. I J Carpentry contends that Mr Barresi left of his own accord. I J Carpentry appears to be supportive of allowing Mr Barresi to complete his trade qualification, and has offered to re-employ Mr Barresi post-termination. To date, this offer has not been accepted.

[9] For the purposes of determining this matter I accept Mr Barresi’s submission that his employment was terminated at the initiative of the employer.

[10] I went to great length to assist Mr Barresi to clearly articulate his position and the reasons for the delay. Mr Barresi was clearly upset by the requirement for him to establish the basis upon which an extension would be granted, and suggested that an adverse decision by the Commission would be the subject of further review.

[11] Based on the evidence before me, it appears that there are four dates upon which it could be said that Mr Barresi would have (or should have reasonably) been aware that his employment with I J Carpentry as an apprentice had come to an end.

[12] The earliest of these dates is 1 May 2015, when Mr Barresi says his employment as an apprentice was terminated.

[13] The next possibility is on or about 23 June 2015, when the SMS exchange between Mr Barresi and Ms Radovanovic took place.

[14] The third possibility is 1 August 2015, when Mr Barresi was provided with the Traineeship Termination form signed by Mr Jovanovic, which detailed the reason for termination as Mr Barresi having ‘quit his job’.

[15] The last alternative is 18 August 2015, when I J Carpentry and Mr Barresi both signed a Traineeship Termination form which provided the reason for termination as ‘Ended employment = not enough work’.

[16] Mr Barresi’s submissions on the date of his termination were inconsistent. At one time, Mr Barresi contended that his employment was terminated on 1 May 2015 and that he did not lodge his unfair dismissal application because he was continuing to be provided with work. At other times, Mr Barresi contended that his employment was not terminated until 18 August 2015 due to the shortage of work and that he applied for Centrelink benefits on that basis.

[17] Mr Barresi’s explanation for his delay post 18 August 2015 was that he was unable to afford the pay the lodgement fee, as he was on Centrelink benefits and that he had lost his driver license.

[18] For the purposes of determining when Mr Barresi was advised that his employment was terminated, I have used the date most beneficial to his claim; that is 18 August 2015.

[19] 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.

[20] 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.”

[21] On the information before me, I am satisfied that the application was made some 37 days outside 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.”

[22] I have considered each of the reasons for the delay put forward by Mr Barresi with respect to the termination date of 18 August 2015.

[23] With respect to the suggestion that he could not afford pay the lodgement fee, I am unable to regard this circumstance as exceptional. Information in respect of the unfair dismissal lodgement process is freely available on the internet. An application to have the fee waived could have been made.

[24] With respect to the loss of his driver’s license, there is no evidence before me that describes how in this instance the loss of a license adversely impacted on Mr Barresi’s ability to lodge an application. I note that Mr Barresi posted his application.

[25] I am unable to conclude that the explanations advanced represent an acceptable reason for the delay, or an exceptional circumstance.

[26] It is clear from Mr Barresi’s application that he was aware of the termination of his employment from 18 August 2015 at the latest. I am not satisfied that, apart from the late lodgement of this application, Mr Barresi pursued other actions so as to challenge the termination of his employment. The duration of the delay favours a finding that an extension of time of this magnitude would prejudice I J Carpentry, but given that no submission in this respect has been made I have regarded this as a neutral issue.

[27] In terms of the merits of the application, 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.

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

[29] Accordingly, I have concluded that the material before me does not establish that Mr Barresi'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 (PR575110) giving effect to this decision will be issued.

COMMISSIONER

Appearances:

Mr Barresi, applicant.

Ms J Radovanovic, for the respondent.

Hearing details:

2015.

Adelaide:

December 15.

 1   Form F2, paragraph 1.4

 2   [2011] FWCFB 975

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