Mr Carlos Reyes v Programmed Integrated Workforce

[2014] FWC 1215

[2014] FWC 1215

FAIR WORK COMMISSION

DECISION

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

Mr Carlos Reyes
v
Programmed Integrated Workforce
(U2013/14211)

COMMISSIONER SPENCER BRISBANE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] Directions in this matter were issued in relation to the jurisdictional objections raised by the Respondent. The Applicant failed to comply with those Directions. Subsequent correspondence from the Applicant, after the Commission queried his non-compliance, stated that the Applicant had not understood the Directions; on the basis that he is a native Spanish speaker. To ensure that the Applicant had a full opportunity to present his case, in relation to the jurisdictional matters, the application was listed for jurisdictional hearing, with the assistance of an Interpreter, to assist the Applicant.

[2] The following decision, now edited, was delivered ex tempore at the Hearing in relation to this matter.

[3] This matter came before me for a determination of two jurisdictional issues raised by the respondent primarily. I will look at the extension of time issue as that is the first jurisdictional issue in relation to the matters raised that determines the course of the application. After having considered the written submissions of the parties and the submissions made at the hearing today, I provide the following decision, which will be later issued in writing. I reserve my right to edit these reasons from the transcript into a written decision.

[4] The applicant filed an application pursuant to section 394 of the Act alleging that he was dismissed from his employment, and further, that the dismissal was unfair. The application states that the dismissal took effect and the applicant was notified of the dismissal on 24 August. This was confirmed the statement of service in October 2012 which the applicant sought. Pursuant to section 394 of the Act, the application must have been lodged, if we are using the 24 August date, by 7 September 2012, being 14 days after that date; or if we are using the October date via the statement of service, the 14 days would run to early November 2012.

[5] On either of those dates the application is approximately one year out of time. The application was filed on 4 October 2013, some 392 or 360 days out of time, as stated. The respondent objects to the application on the basis that the applicant has filed out of time; and further, the applicant, they say, was not dismissed within the meaning of the definition in the Act. The applicant primarily seeks an extension of time, and this is the issue that I will deal with in this decision. Section 394(2) of the Act requires that an application be lodged within 14 days after the dismissal took effect. I am satisfied that the application has been lodged out of time, and significantly so.

[6] In exercising my discretion to extend time under section 394(2) of the Act, I may only do so if I am satisfied that ‘exceptional circumstances’ exist, taking into account those matters set out in section 394(3) of the Act. These elements were set out in writing in the directions provided to the parties. The approach to exceptional circumstances has been set out in full bench decisions of the Fair Work Commission. I will set these out in more fulsome terms in the written decision. Specifically the authorities set out that exceptional circumstances are out of the ordinary course, unusual, special or uncommon.

[7] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 1 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

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 Cornwell 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.” 4

[8] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[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.” 5

[9] I consider each of the elements of section 394(3) briefly here and will do so in more detail in writing.

[10] As to the reason for the delay, the applicant has submitted that he was not aware of the law in relation to the unfair dismissal. Continuous decisions of this Tribunal and other Courts have held that “lack of knowledge of a time limitation has been rejected ... as a ground for the exercise of the Tribunals discretion”. 6 Further, “delay on account of ignorance of the statutory time limits is not, of itself, an exceptional circumstance”.7

[11] As to any impact that the applicant's knowledge of English may have had, it cannot be said that such a reason is out of the ordinary, unusual, special or uncommon.

[12] I note (in relation to the Spanish being the Applicant’s first language) the applicant has been in Australia for some 30 years and certainly that he has shown an ability (as demonstrated at hearing) for a basic understanding of some of the more complex concepts that we have discussed today. In addition there has been the ability to have access to translation services via the Commission’s website, and certainly if approaches were made to Legal Aid then that would have been facilitated for him. It doesn't seem in dispute that the applicant was advised of the dismissal, and certainly a confirmation of that was provided in October 2012, and certainly he had an awareness that the last time he was offered work was 24 August 2012.

[13] The applicant has not indicated he has taken any action to dispute the dismissal with the respondent. The respondent has not made any submission as to any specific prejudice to be occasioned to it. In terms of the merits of the application, there is not enough information before the commission to give specific weight or significant weight to the merits of the application, and therefore I have not done so. However, I recognise that the Applicant submits that he injured himself at work, but he only became aware of this in the proceeding year after the employment contract was finalised, when he visited his specialist.

[14] In terms of the fairness between the applicant and others, the respondent makes a submission that it should have the ability to rely on the 14-day time limit. The applicant has made no specific submission in relation to this criteria.

[15] In conclusion, I am not satisfied that exceptional circumstances have been demonstrated, such that I could exercise my discretion to extend time. The delay in the matter is significant. The reason for the delay, which essentially amounts to ignorance of the law, has continually been rejected by the commission and its predecessors as a valid reason for delay.

[16] The evidence before me is clear that the circumstances of the applicant's alleged dismissal were within the applicant's knowledge and he was able to make endeavours sometime later to make an application. However, he has taken no steps to dispute the dismissal in any way prior to this at the time it occurred or in a timely manner. When discovering. There is insufficient information before me to place much weight upon the merits of the application. Accordingly I dismiss the application for an extension of time.

[17] I Order accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.394(3).

 2  Wheelan C, [2009] FWA 1638, [30] and [31].

 3   Lawler VP, [2010] FWA 1394.

 4   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 6   Matt Dain v Sam Bradley & Robert Grant [2012] FWA 7276.

 7   Nulty v Blue Start Group Pty Ltd [2011] FWAFB 975.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR547910>