Mr Daniel Robert Andrew Gauci v Super Retail Group Limited T/A BCF

[2014] FWC 8497

[2014] FWC 8497

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Daniel Robert Andrew Gauci
v
Super Retail Group Limited T/A BCF
(U2014/8475)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Gauci and the respondent ended on 1 July 2014. Mr Gauci lodged his application at the Fair Work Commission on 23 July 2014. His application was lodged 2 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Gauci. In the application he provided the following explanation for his delay in lodgement:

“1.4 I was extremely embarrassed by what had happened and closed up. It took me until yesterday to talk about it with my parents. After having a good discussion I feel this is my best choice of action.”

[4] I wrote to Mr Gauci on 4 September 2014 outlining the matters I was required to consider by the Act and asking him to provide a statement addressing these matters within 14 days. Mr Gauci provided a comprehensive statement on 12 September 2014. In summary Mr Gauci submitted that:

● his termination of employment meeting had been sudden and he had had no understanding of the reason for the meeting beforehand,
● he was in shock and could not comprehend what had happened to him,
● he was occupied for some time with following up his separation certificate, annual leave and bonus payment and,
● he was suffering from mental and psychological effects from the termination of his employment. In this regard his submission is set out below.
“11. The resultant mental and psychological impact of my termination, was debilitating for several weeks. I became withdrawn, uncommunicative, not interested in my sport (which I greatly enjoy) and moody. It was obvious I was clearly affected by the conduct of the managers during the interview, the resultant termination and it’s effects on me as a proud, loyal and confident individual. The weight of the termination lasted for weeks and on many occasions as it was replayed in my mind, it’s shame and embarrassment made routine daily activities unachievable. The question of what did I really do wrong, remains unanswered and why it made me culpable. Nothing like this had ever happened to me before. Despite many attempts by my parents, grandparents, brothers, friends and girlfriend to seek some rational reason for my behaviour, I was unable to bring myself to discuss it with anyone, such was the shame and depression that possessed me.

12. Finally, after much personal internal deliberation, I sat down one night with my parents as they were constantly concerned as to why I hadn’t been going to work and wanted to know what was going on. My behaviour was out of character and as good parents, it was obvious to them there was ‘something’ that was causing this. Why were the dark clouds of depression now a constant front of my persona? The loving urging, support and collaborative nature of both my parents brought me to divulge the circumstances and it’s result. In particular the debilitating effects of the meeting, the shame, embarrassment and how I had let them and everyone else, particularly myself, down. To their credit, their initial reaction was of outrage as to my treatment and as good parents do, complete support given my unsavoury and unfair treatment. Being honest with them was a relieving activity which I dearly needed. They too strongly believed my natural justice had been impugned and denied. To their and my great relief, their support and guidance, eventually gave me the confidence to research what options I had as regards the situation. I sought advice from friends and other family members as to my available options, not to mention that available on the internet. This lead to my application to the Fair Work Commission - an option I was not aware available to me post my meetings and termination, especially given my withdrawn, non communicative, shameful and secluded nature. The effects of time had taken it’s personal toll on myself and those who (sic) lives I had excluded from my world but also became my strongest supporters of my determination to have my reputation restored. The Fair Work application was a great panacea and one which no medical application could have so successfully prescribed.”

[5] On 23 September 2014 I asked the applicant if he had any medical support/evidence regarding the effect of the termination of his employment which might support his application for an extension of time including evidence of any incapacity to lodge an application. He did not respond and I therefore wrote to him to remind him of my question and advised him that if I did not receive a response within seven days I would deal with this application on the material already before me without further notice to him.

[6] I received a statutory declaration from a close friend of Mr Gauci who set out the effect of the termination of Mr Gauci's employment upon his general demeanour.

[7] On 17 October 2014 I instructed my associate to contact Mr Gauci and ask if he had sought any professional help for his psychological condition. Mr Gauci Senior advised my associate that during the relevant period his son was unable to speak to anybody and he said that he would call back if there was a positive answer by 22 October 2014. He did not call.

[8] I issued an Order 1 refusing Mr Gauci his application for an extension of time and dismissed his application on 24 October 2014.

[9] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[11] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

reason for the delay-s.394(3)(a)

[12] I have already set out the reasons Mr Gauci provided for his delay in lodgement.

[13] While very sympathetic to his circumstances I was not persuaded that his difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[14] Mr Gauci became aware of the end of his relationship with the respondent on 1 July 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[15] Mr Gauci disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[16] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Gauci’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[17] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Gauci and other persons in a similar position-S.394(3)(f)

[18] There was no issue of fairness in relation to any other person in a similar position.

[19] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Gauci’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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