Mr David Stewart Jauncey v Macro Recruitment

Case •

[2023] FWC 839

•

6 APRIL 2023
[2023] FWC 839

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr David Stewart Jauncey
v

Macro Recruitment

(C2023/1027)

COMMISSIONER PLATT

ADELAIDE, 6 APRIL 2023

Application to deal with contraventions involving dismissal - extension of time - application granted.

  1. On 26 February 2023, Mr David Jauncey (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with Macro Recruitment (the Respondent) which is alleged to have occurred on 1 February 2023.  

  1. The Fair Work Act 2009 allows 21 days to lodge this application. This means that an extension of time must be granted by the Fair Work Commission to allow the general protections application to proceed.

  1. The application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:

“I originally called FWC and spoke to them about the situation and steps I might follow. I was informed to speak to speak to the free 1 hr community legal which FWC provided the details.

I spoke with the free legal service and was informed to fill out the original application U2023/1409. I lodged the original application within the 21 days of termination. After being contacted on the Fri 24th I was informed that the application was wrong and needed to be this new application since it was not unfair dismissal.

I followed the instructions given by the staff member on Fri 24th and now lodging this application.” (sic)

  1. On 10 March 2023, the Respondent filed a Form F8 which raised the jurisdictional objection that the application was lodged out of time and provided submissions. The Respondent contended that the employment ceased on 31 January 2023.

  1. On 23 March 2023, the Commission corresponded with the parties and advised that the extension of time issue was listed for a Hearing via telephone at 4:00pm on 5 April 2023 and provided information about the matters that would be considered by the Commission. The Applicant was advised that his material in support of his extension of time application was to be provided 4:00pm on 30 March 2023 and any submission by the Respondent by 4:00pm on 4 April 2023. The Applicant filed a statement and a number of documents. The Respondent did not file any further material.

  1. The matter was heard by teleconference at 4.00pm on 5 April 2023. A recording of the hearing was retained.  Mr Jauncey represented himself. The Respondent advised that it would not attend the hearing.

  1. The Applicant gave evidence. His relevant evidence is summarised as follows:

·  He was employed by the Respondent to provide services to DTSG from a date not earlier than 5 September 2022.

·  On 5 January 2023, Mr Jauncey wrote to the Respondent complaining that he had not been paid for the period between 5 September and 1 November 2022.

·  On 1 February, he received a letter from Ms Soyuz Bhattariti from Macro advising that his contract was terminated. This was when he first learnt of his dismissal.

·  After his dismissal, he contacted the Commission and arranged to receive free legal advice.  On 7 February 2023, he was provided with an Unfair Dismissal Application and advised of the 21-day time limit. It appears he was provided with advice concerning Employee v Contractor and the Minimum Employment Period requirements were not discussed.

·  At 11.27am on 22 February 2023, Mr Jauncey filed an unfair dismissal application.

·   On 24 February 2023, a Commission employee contacted Mr Jauncey and had a discussion about the Minimum Employment Period not being met. Mr Jauncey verbally discontinued his unfair dismissal application and advised he would lodge a general protections claim.

·  At 12.56pm on Sunday 26 February 2023, Mr Jauncey filed this application.

·          Mr Jauncey advised that he was unaware that he was not protected from unfair dismissal until being advised so by the Commission staff member who reviewed his unfair dismissal claim.

Applicable Law

  1. Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

  1. I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd,[1] 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 every day 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.”

Consideration

  1. I find that the Applicant was dismissed on 1 February 2023.

  1. This general protections application was made 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

  1. Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant.

(a)The reason for the delay

  1. I accept that the Applicant was provided with an Unfair Dismissal Form and lodged the same in the belief that it was the appropriate course of action. The Applicant having been advised by the Commission that he was unlikely to be ‘protected from unfair dismissal’ due to the brevity of his service, withdrew his application and filed a general protections application four days later. I find that the Applicant has explained the delay, and this weighs in favour of an extension of time.

(b)Any action taken by the person to dispute the dismissal

  1. The Applicant has pointed me towards a communication made on 5 January 2023. This communication predates the dismissal.

  1. The lodgement of the unfair dismissal claim is however action taken by the Applicant to contest the dismissal. This weighs in favour of an extension of time.

(c)Prejudice to the employer (including prejudice caused by the delay)

  1. There is no submission that the granting of an extension of time represents prejudice to the Respondent.

(d)The merits of the application

  1. In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly, I have regarded the merits as a neutral factor.

(e)Fairness as between the person and other persons in a similar position

  1. Consideration of fairness relative to other persons in similar positions is not relevant in this matter and is thus a neutral factor.

Conclusion

  1. Having considered the material before me, I am satisfied that the Jauncey’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted. An Order reflecting this decision will be issued.[2]

  1. I am advised that the Respondent declined to participate in the initial conciliation offered to the parties.  Prior to the Extension of time hearing, the Respondent advised the Commission that in the event that the extension of time was granted it did not wish to engage in conciliation.

  1. I have determined that in the circumstances a Certificate should issue.

COMMISSIONER

Appearances:

Mr David Stewart Jauncey the Applicant.

Hearing details:

2023.
Adelaide.
April 5.


[1] [2011] FWAFB 975.

[2] [PR760931]

Printed by authority of the Commonwealth Government Printer

<PR760931>

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