Mr Gary Hill v Kalparrin Community Inc

[2015] FWC 8661

[2015] FWC 8661

FAIR WORK COMMISSION

DECISION

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

Mr Gary Hill
v
Kalparrin Community Inc
(U2015/15019)

COMMISSIONER PLATT ADELAIDE, 15 DECEMBER 2015

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

[1] Mr Hill 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 Kalparrin Community Inc.

[2] An unfair dismissal application, undated, was received by the South Australian Registry of the Fair Work Commission (the Commission) on 13 November 2015.

[3] Mr Hill’s application advised that his employment was terminated on 28 August 2013. Mr Hill asked the Commission to consider the following information in deciding whether to accept his application out of time:

“Suffered a mental health breakdown from the employment and had to seek treatment from my doctor and was unable to meet the time frame within which to make an application” 1

[4] On 2 December 2015, my associate corresponded with both Mr Hill and Kalparrin Community Inc, 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 Hill 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] Additional information was received from Mr Hill by email on 14 December 2015. This advice stated:

“There is a mistake with my application question what date did your dismissal take affect spouse (sic) to be 28/8/2015 not 2013 year.”

[6] Mr Hill participated in the telephone conference. Mr Mulvihill represented Kalparrin Community Inc.

[7] Mr Hill provided further information in support of the extension of time request during the telephone conference. Mr Hill explained his delay on the basis that his legal advisor only came to Murray Bridge every two weeks, and that he was unable to pursue the matter due to his medical condition. Mr Hill said he received a medical certificate, but he was unable to provide it or advise the date it was received other than it was two weeks ago, or several weeks ago. No evidence was provided regarding the impact of the medical condition on Mr Hill’s capacity to lodge an application.

[8] My conclusions about the extension of time issue were reached on the basis on all of the information before me. I note that a sound file record of this telephone conference was kept.

[9] 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.”

[10] I accept Mr Hill’s submission that the date of termination was 28 August 2015 and not in 2013.

[11] On the information before me, I am satisfied that the application was made some 56 days outside of 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.”

[12] I have considered each of the reasons for the delay put on behalf of Mr Hill. Firstly, to the extent that he was unable to lodge his application due to his mental health, I note that no medical evidence which supports the inability of Mr Hill to lodge the application has been provided. Mr Hill’s evidence as to when he received a doctor’s certificate was vague and uncertain, and it appears to have occurred after the application was lodged. I am unable to regard this circumstance as exceptional. To the extent that Mr Hill submits he was unaware of his rights until he was able to speak to his legal advisor on one of her fortnightly visits, I am unable to conclude that this represents an acceptable reason for the delay, or an exceptional circumstance.

[13] It is clear from Mr Hill’s application that he was aware of the termination of his employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Hill 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 Kalparrin Community Inc, but given that no submission in this respect has been made I have regarded this as a neutral issue.

[14] 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.

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

[16] Accordingly, I have concluded that the material before me does not establish that Mr Hill'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 (PR575107) giving effect to this decision will be issued.

COMMISSIONER

Appearances:

Mr Hill, applicant.

Mr J Mulvihill, for the respondent.

Hearing details:

2015.

Adelaide:

December 15.

 1   Form F2, paragraph 1.4

 2   [2011] FWAFB 975

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