Mr Bengt Erik Helge Jansson v Shorefront Enterprises Pty Ltd T/A La Macelleria
[2012] FWA 4651
•7 JUNE 2012
[2012] FWA 4651 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bengt Erik Helge Jansson
v
Shorefront Enterprises Pty Ltd T/A La Macelleria
(U2012/227)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 7 JUNE 2012 |
Application for unfair dismissal remedy - jurisdiction - out of time application - exceptional circumstances - extension of time granted.
[1] Mr Jansson sought an extension of time for lodgement of his application lodged pursuant to s 394 of the Fair Work Act 2009 (the Act).
[2] Evidence was not called in relation as to whether Mr Jansson was dismissed from his position as Manager of La Macelleria within the meaning of s 386 of the Act, a jurisdictional objection raised by Shorefront Enterprises. This issue will be determined by another Member of Fair Work Australia (FWA) at the same time as the merits of the substantive application.
[3] I heard this application on 8 May 2012 in Sydney. Mr Jason Laxon, solicitor of Hillman & Laxon & Tobias, appeared for Mr Jansson. Mr Chris Agnew, solicitor of Agnew Legal, appeared for Shorefront Enterprises Pty Ltd t/a La Macelleria (Shorefront Enterprises). On 23 May 2012 I issued an order extending the time for lodgement of Mr Jansson's application. The following are my reasons for that decision.
[4] On 8 February 2012 Mr Laxon lodged Mr Jansson’s application. On either version of events the application was lodged out of time. It was either two days late on Mr Jansson's version or seven days late on Shorefront Enterprise’s version.
[5] Mr Jansson contended that he was constructively dismissed at a meeting held on 13 January 2012, having been offered a junior sous chef position on a significantly reduced salary. He contended that the dismissal “took effect” on 23 January 2012 after his return from directed leave and after signing a cessation of employment certificate.
[6] Mr Agnew submitted that Mr Jansson was not a person protected from unfair dismissal as he had resigned from his employment on 18 January 2012, having sent a text message to Mr Matthew Gilroy of Shorefront Enterprises which stated “not coming back”.
[7] Mr Laxon provided an explanation as to why Mr Jansson had not lodged his application on time. Mr Jansson's father-in-law became gravely ill on 11 January 2012 and died on 28 January 2012. Understandably, during this period Mr Jansson's primary concern was for the care of his distressed wife and her family and the primary care duties of his two young children. He also had sole responsibility for organising his father-in-law's funeral on 2 February 2012.
[8] In spite of these unfortunate circumstances Mr Jansson managed to seek legal advice of varied effectiveness on 16 January 2012, 17 January 2012 and 3 February 2012. Mr Laxon submitted that ‘representative error’ was a relevant contributing factor to the delay in lodgement. One solicitor advised Mr Jansson that he did not qualify for an unfair dismissal remedy. Mr Laxon also contributed to the delay in lodgement of the application by engaging in correspondence with Shorefront Enterprises instead of lodging an application immediately.
[9] Mr Agnew submitted that Mr Jansson’s application for an extension of time should be refused because he had been advised of the 14 day statutory time limit and had not made a sufficient effort to lodge his application within time. Further, Mr Agnew submitted that Mr Jansson was no stranger to unfair dismissal laws. He drew my attention to Mr Jansson’s evidence that he was “familiar” with the term “unfair dismissal” and had been involved in the disciplining and the termination of staff during his employment with Shorefront Enterprises. I was not persuaded by the latter submission. Mr Jansson's evidence was that he had never lodged an unfair dismissal claim and had never been involved in an unfair dismissal application. Mr Agnew also submitted that if the time for lodgement was extended, his client would have to face the burden of defending the application and also, because Mr Jansson’s case was unmeritorious on its own facts, his client would be prejudiced.
[10] 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.”
[11] Both parties referred me to relevant authorities which I have reviewed. In addition, 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
[12] 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)
[13] 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 and, where I find it pertinent on the facts, the authorities provided by the parties.
[14] I considered the circumstances of this case in light of the criteria set out for consideration in s394(3).
[15] I considered ss394(3)(a). One of the reasons for delay provided by Mr Jansson was the serious and unexpected illness and subsequent death of a close relative. In this circumstance Mr Jansson also had the primary care of his two young children and the sole responsibility for organising his father-in-law’s funeral. I consider such events constitute exceptional circumstances since they are not regularly, routinely or normally encountered. I was also satisfied that there was representational error, in particular by Mr Laxon, which contributed to the delay. Hopefully this is not a circumstance normally, regularly or routinely encountered or considered.
[16] I considered ss394(3)(b). Mr Jansson’s evidence was that he first became aware that his position as Manager would cease during a meeting with the employer on 13 January 2012. This assertion was not tested by the employer in cross-examination. This was a neutral factor in my consideration of this application.
[17] I considered ss394(3)(c). I was satisfied that the applicant took active steps to dispute his dismissal and was diligent, particularly given his difficult personal circumstances, in pursuing a remedy.
[18] I considered ss394(3)(d). There was no prejudice to the employer except the ordinary prejudice of having to defend an application. This was a neutral factor in my consideration.
[19] I considered ss394(3)(e). A Member of FWA is not in a position to make findings of fact on contested issues unless evidence is called and a full hearing conducted on those issues. On the material before me I was not in a position to draw any conclusion adverse to Mr Jansson on the merits of his substantive application. I considered that he had an arguable case.
[20] I considered ss394(3)(f). There was no relevant matter of fairness arising between Mr Jansson and any other person in a similar position.
[21] Having had regard to all those matters set out in s394(3)(a)-(f), I was satisfied that there were exceptional circumstances justifying an extension of time for the lodgement of this application.
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
Printed by authority of the Commonwealth Government Printer
<Price code B, PR524626>
1
6
0